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COPYRIGHT, 1908, BURTON ALVA KONKLE 



1745-1809 

From the only known portrait, a miniature 

in possession of W. J. De Renne, Esq., 

Wormsloe, Savannah, Georgia 

(Artist unknown) 



The Life and Times of 

Thomas Smith 

1745-1809 

A Pennsylvania Member of the Continental Congress 



BY 



BURTON ALVA KONKLE 

Formerly Associated with the 

Historical Work of the Pennsylvania Bar Association, Member of 

the Pennsylvania Historical Society and of the 

American Historical Association 

With an Introduction by the 

HON. HAMPTON L. CARSON, LL. D. 

Attorney-General of Pennsylvania 



CAMPION & COMPANY 

PHILADELPHIA 
I 904 






LIBRARY n1 CON(iRESS 
Two Copies Received 

FEB 23 1904 

CLAiS «- XXc. No, 

6 ^ T i C 

COPY B 



Copyright 1903 

By 
Burton Alva Konkle 



TO 

my little daughter 
Winifred 



Contents 



Preface 

Introduction by Hon. Hampton L. Carson, LL. D 

Chapter I. His Scottish Origin i 

Chapter II. The America and Pennsylvania He Might Have 

Known in 176S 12 

Chapter III. The Young Scotchman Leaves London to Be- 
come a Pennsylvania Surveyor 26 

Chapter IV. He Combines the Duties of Lawyer, Prothono- 
tary, Clerk, Recorder, and Justice with that of 
Surveyor 42 

Chapter V. Warfare with the Virgmians, the Indians and 

British in the Opening Revolution 50 

Chapter VI. Member of the Constitutional Convention of 1776 

and the New Government of Pennsylvania. . 70 

Chapter VII. Opposition to the Radical Party and the Consti- 
tution of 1776 89 

Chapter VIII. Member of the Continental Congress and Active 

in Restoring National Finances 122 

Chapter IX. A Leading Land Lawyer of Pennsylvania ... 160 

Chapter X. Reorganization of The Judiciary under the New 
Constitution of 1791 ; President Judge of the 
Fourth Judicial District and Member of The 
High Court of Errors and Appeals 190 

Chapter XI. Member of The Supreme Court and High Court 
of Errors and Appeals of Pennsyhania, 1794- 
1809 ; I. The Chief-Justiceship of McKean, 
1794-1799 227 

Chapter XII. The Same ; II. The Chief-Justiceship of Shippen, 

1799-180.S 251 

Chapter XIII. The Same ; The Ciiief-Justiceship of Tilghman, 

1806-1809 267 



Illustrations 



1. Frontispiece, Thomas Smith. 

II. His Coat-of-Arms 2 

• III. Cruden and Vicinity, Aberdeenshire. Scotland, 

a map 4 

IV. Slains Castle, Aberdeenshire, Scotland .... 6 

^ ■ V. Rev. William Smith (afterwards D.D.), First 
Provost of The College of Philadelphia, 
now University of Pennsylyania 8 

VI. College of Philadelphia 10 

VII. Map of Pennsylvania and Neighboring Colonies 

in 1755, by Lewis Evans (a part) 14 

VIII. Map of Pennsylvania County Organization in 

1768 20 

IX. Map of Indian Purchases of Pennsylvania by 

1768 28 

X, Map of Deputy Surveyor's Districts assigned 

to Thomas Smith 32 

XI. Arthur St. Clair 36 

XII. Map of Pennsylvania in 1770 by William Scull 38 

XIII. Map of Pennsylvania in 1771, showing Bedford 

County 40 

XIV. Map of Pennsylvania in 1772-3, showing North- 

umberland and Westmoreland Counties . . 46 

XV. Bedford Court House of 1774 48 

XVI. Virginia Claims in Pennsylvania 50 

XVII. John Penn, the last of the Colonial Governors 

of Pennsylvania 62 

XVIII. The Pennsylvania Assembly's Committee which 
first recommended Freedom to Congress- 
ional Delegates to Vote for Independence 68 

XIX. The State House and Congressional Capitol, 

at Philadelphia, by R. Peale, 1778 70 

, XX. The Old Supreme Court Room, State House, 
Philadelphia, Meeting Place of The State 
Constitutional Convention 72 



Illustrations 

XXI. George Bryan 74 

XXII. Map of The Proposed State of Westsylvania . 82 

. XXIII. First and Last Pages of The Pennsylvania 

Constitution of 1776 84 

-/ XXIV. Country Seat of Provost Dr. Smith at Schuyl- 
kill Falls, view by Stuart 108 

XXV. A Picture used as a Political Argument. . . no 

' XXVI. James Wilson, from the origfinal miniature . 120 

XXVII. Henry Wynkoop. . 130 

XXVIII. The Wissahickon 146 

XXIX. Mrs. Thomas Smith 148 

XXX. The Carlisle Court House 166 

. XXXI. First Page of a Legal Argument by General 

Washington 176 

XXXII. James Wilson, portrait by Edwin 194 

XXXIII. Cartoon of Judge George Bryan 100 

XXXIV. First Judicial Districts of Pennsylvania. . . . 206 
XXXV. Commission of Thomas Smith as President 

Judge of the Fourth District aio 

XXXVI. The First Court House at Lewistown. . . . ai6 
XXXVII. The High Court of Errors and Appeals, in 

I79I 322 

XXXVIII. Judge Smith's Commission as Justice of The 

Supreme Court 228 

XXXIX. Members of The Supreme Court in 1794. . . 230 

XL. Members of The Supreme Court in 1799. . . 252 

XLI. View of Supreme Court Room about 1802 . 260 

XLII. Members of The Supreme Court in 1806 . . 268 

XLIII. Interior of Christ Church, showing his "The 
Presidents Pew"; view of tomb in Christ 

Church Graveyard 278 



Preface 



During the past few years, while associated with the 
Hon. Hampton L. Carson, in the collection of material for 
his "History of the Supreme Court of Pennsylvania," and 
with the historical work of the Pennsylvania State Bar 
Association, the author became especially interested in cer- 
tain of the remarkable, but all too little known, judges and 
lawyers of the past in this commonwealth, and the move- 
ments with which they were identified. Among these, not 
to mention more, were Chief Justices David Lloyd and John 
Kinsey and Justices George Bryan and Thomas Smith — 
men vastly different in character and achievement, but 
worthy of the closest attention of every student of the 
growth of the great commonwealth of Pennsylvania, and, 
indeed, of students of national history itself. It had been 
one of the duties of the author to urge upon the proper 
persons the collection, preservation and publication of ma- 
terial regarding the life and work of those eminent in legal 
life, and many took occasion to reciprocate and urge the 
author to do it himself. In regard to the characters above 
mentioned, it had long been the hope that the way might 
some time be clear to permit him to make these great char- 
acters appear to the public as he saw them in the original 
records. The location of portraits of the Revolutionary 
leader in this commonwealth, George Bryan, and that of 
Judge Thomas Smith, as well as the finding of their original 
papers, and the fact that these two careers were so closely 
bound up with that most interesting and historically signifi- 
cant thirteen-years-long contest over the Pennsylvania Con- 
stitution of 1776 — the prototype of constitutions of the school 
opposed to checks and balances — soon led the author to 
decide that when the way opened, as it did in the summer 
of 1902, he should undertake the story. Furthermore, the 
character and career of Judge Thomas Smith had had pecu- 
liar attractiveness, not only because of the noble qualities 
of the former, but also because the latter was so capable of 



illustrating the constructive spirit in the growth of both 
state and nation during probably the most interesting half- 
century of their existence. This has also involved treat- 
ment of the work of George Bryan, who, extended as this 
treatment of him is, deserves, and will yet receive from 
some hand, a proper tribute which will place him among 
the men Americans, and lovers of liberty everywhere, delight 
to honor. 

As to method, the author has attempted nothing but to 
introduce the reader at once to the original sources from 
which his own impressions were received. This has necessi- 
tated the utmost loyalty to those originals, even to a punctua- 
tion and spelling often unknown to our own day — and, some- 
times, to any other. This loyalty to originals has also been 
sought in illustration, and much of it has been made possible 
through the excellent photographic work of Mr. Charles 
Truscott, of Philadelphia. 

To acknowledge the many courtesies received in such a 
work as this is a hopeless task and cannot be attempted. 
It is impossible, however, not to in some slight manner 
recognize the encouragement and friendship of W. J. De 
Renne, Esq., of Savannah, who has so freely placed at my 
disposal the Smith papers in his collection and so thoroughly 
sympathized with my historical purposes throughout the long 
work. Nor can I omit the name of that valued friend, Hon. 
Hampton L. Carson, who kindly writes the Introduction, 
whom, it is patent to all, to know is to love. I must also 
acknowledge the courtesy of D. McNaughton Stauffer, Esq., 
of New York; C. P. Humrich, Esq., of Carlisle; Eli Kirk 
Price, Esq., of Philadelphia; Thomas H. Montgomery, Esq.. 
of West Chester ;^ Mrs. Chew, of Germantown ; Hon. W. F. 

^ From Mr. Montgomery has been j ust received a confidential 
letter from Thomas Smith to James Wilson on the Carlisle riots. 
The following extract only can here be quoted: "Those who went so 
willingly and unnecessarily to gaol, are only the Tools of Tools — I 
verily believe that they and those here who immediately urged them 

on, wished and expected to foment a civil war happily their 

attempts as well as the machinations of those at the bottom of this 
wickedness have proved abortive on this occasion, and will, I hope, 
be brought to naught ultimately. I must however do many re- 
spectable characters, whose minds were for some time greatly ad- 
verse to that Constitution [the national one], which most of the 
wisest and best men on the continent so highly approve of, the 
justice to observe that they seemed upon this occasion as anxious 
to preserve peace and good order as any others." This letter was 
the basis of the accounts in the Philadelphia papers. 



Bryan, of Peoria; S. S. Bryan, Esq., of Titusville; Dr. 
Alfred Whelen and Simon Gratz, Esq., of Philadelphia, 
and Mrs. Charles Hodge Scott, of Germantown, while using 
their collections. My friend, William MacLean, Jr., Esq., 
of Philadelphia, has been suggestive in the borderland of 
legal lore involved in a layman's work on a judicial life, and 
like aid in another sphere from another friend, the well- 
known artist, Mr. Albert Rosenthal, of Philadelphia, is glad- 
ly acknowledged. Material has been kindly sent me by Rev. 
J. Strachan, of Port Erroll, Scotland; William A. Kelker, 
Esq., and H. M. Hoke, Esq., of Harrisburg; Boyd Crum- 
rine, Esq., of Washington ; Dr. John H. Brinton and his son, 
Jasper Yeates Brinton, Esq., of Philadelphia ; John S. Wurts, 
Esq., of Germantown ; Mrs. George Dallas Albert, of Greens- 
burg; Hon. Edward W. Biddle, of CarHsle; M. S. L}1:le, 
Esq., of Huntingdon; Hon. J. H. Longenecker and Hon. 
Wm. P. Schell, of Bedford; officers of the Department of 
the Interior at Harrisburg; the clerk of the national Su- 
preme Court ; Prothonotary McCabe, of Lewistown, and 
other court officers in the counties of Cumberland, Mifflin, 
Huntingdon, Bedford and Franklin, over which Judge Smith 
presided, some of whom are mentioned in the proper place. 
The cooperation of the late Col. Greene, prothonotary of 
the Supreme Court, and Dr. John W. Jordan and other 
officers of the Pennsylvania Historical Society, Librarian 
Luther E. Hewitt and other officers of the Law Association, 
T. Elliott Patterson, Esq., Librarian Samuel, Librarian 
(Mrs.) Klingelsmith, and others of other libraries and col- 
lections, would be gladly recognized more fully did space 
permit. 

Finally, it does not seem as though I could let pass this 
opportunity to express my appreciation of the frequent and 
suggestive helpfulness and encouragement of our Chief 
Justice, the Hon. James T. Mitchell, not, indeed, so much 
in this particular work, but in all my historical studies in 
Pennsylvania. 

BURTON ALVA KONKLE. 

SWARTHMORE, I903. 



Introduction 



Horace Binney, in writing of the Supreme Court of 
Pennsylvania as it was at the time he came to the bar in 
1800, thus speaks of one of its members : 

"Smith was defectively educated in the law, but by great 
industry had amassed a considerable knowledge of it. He 
was, like Yeates, a case lawyer, inferior, however, to him 
in the extent of his learning, and even less inclined to leave 
for a moment the support of adjudged cases for that of 
principle — a good fault in moderation but a gross one in 
excess. He was rough and bearish in his manners, un- 
couth in his person and address, and was incapable of rais- 
ing the skin by a reproof without making a gash. But he 
was a truly honest man, as far as his prejudices, which 
were ])robably unknown to himself, would permit, and 
under that shaggy coat there was a kind and warm heart. 
He had been a deputy surveyor, and from this perhaps got 
the habit of always moving in a right line — that is, the 
shortest line to his point — and thus contrasted broadly 
with the waving lines of the Chief Justice (Shippen) and 
Mr. Yeates, though, if he had had more knowledge of the 
law and the general affairs of men, his disposition in this 
respect would have been best for the bench and the public. 
His notions of ceremony were very strange, and with his 
utter inability to dress, or make a bow, or do anything 
else like other people, made him in some situations irre- 
sistible. Mr. Rawle upon one occasion invited some of 
the bench an<l bar to dine with him at Harley, his summer 
residence near the Falls of Schuylkill, and I was one of the 
number. It was a day in July, excessively hot, and the 
Ridge Road dusty to sufl'ocation. I went with some of 
my young friends in a hackney coach, and we overtook 
Judge Smith on the road. He was on horseback, in enor- 
mous boots that came above his knees like a fisherman's, 
a cocked hat exposing his whole face to the fiery sun, and 
a full cloth dress which had been black probably when he 



set out, but when we saw him was most dirty drab. Some 
fifteen minutes after our arrival he came into the saloon 
where the company had assembled. His hat was then in 
his hand, but on his head was a mass of paste made by 
the powder and pomatum, a part of which had run down 
in white streams upon his face, as red in all the unplastered 
parts as a boiled lobster, and his immense boots and spurs, 
broad skirted coat, and the rest of the appearance I have 
described, made him the most extraordinary figure for a 
summer dinner that I have ever seen; but he did not 
appear to think that he was otherwise than he ought to 
be for the honour of his host, or for his own comfort. To 
this person I owe more real civility and kindness, both at 
the bar and elsewhere, than to any other Judge of the 
Court until the time of William Tilghman. I know, more- 
over, from the representation of one who knew him bet- 
ter than I did, that he was susceptible of the noblest emo- 
tions of generosity and benevolence." 

The man thus graphically described was Thomas Smith, 
the subject of the following Memoir. He was one of a 
group of interesting young Scotchmen — James Wilson, 
Hugh Henry Brackenridge and Alexander Addison — all 
born within a comparatively short distance of each other 
in their mother land, and all attaining high judicial places, 
the first in the Supreme Court of the United States, the 
latter in Pennsylvania, the State of their adoption. 

Thomas Smith arrived here in 1768 at the age of twenty- 
three years, whither his distinguished half-brother, Wil- 
liam Smith, the first Provost of the University of Penn- 
sylvania, had preceded him. The brothers became in a 
very real sense, though working in different fields, builders 
of the Commonwealth. 

Few, even of the closest readers of Yeates's Reports, 
have noticed in Volume I the following memorandum : 
" The Honorable William Bradford, Esquire, resigned his com- 
mission as one of the Justices of the Supreme Court the last 
day of this term, and zuas appointed Attorney General of the 
United States. The Honorable Thomas Smith, Esquire, zvas 
appointed to succeed Mm, and his commission quamdiu se 
BENE GESSERiT, dated the Thirty-First of January, 17Q4, zvas 
published in open Court on the Seventh of April, 1794;" and 
fewer still will recall the fact that he occupied his high 
place for a period of more than fifteen years as the Associ- 
ate of Chief Justices Shippen and Tilghman. He was useful 



to both of them because of his practical as well as legal 
knowledge of the land laws of the State, and both at times 
leaned heavily on him. His preparation for his most im- 
portant work had been varied and peculiar. A surveyor 
and a pioneer in that portion of the State which embraces 
the present counties of Bedford and Huntingdon, he soon 
added the duties of lawyer, prothonotary, clerk, recorder 
and Justice of the Common Fleas and Member of the 
Assembly ; at the same time that he held a commission as 
Colonel of the Second Battalion of the Bedford County 
Associators, he served as a member of the Committee to 
draft instructions to the delegates in Congress in com- 
pany with John Dickinson, Robert Morris, Joseph Reed 
and George Clymer. Later, a member of the Constitu- 
tional Convention of 1776 which gave a new Government 
to Pennsylvania, and still later a member of the Conti- 
nental Congress, diligent in the work of restoring national 
finances, he retired in 1782 to resume his practice at the 
bar and became a leading land lawyer. Nine years after- 
wards, upon the reorganization of the judiciary under the 
new constitution of 1790, he became President Judge of 
the Fourth Judicial District, and then four years later a 
member of the Supreme Court under the appointment of 
Governor MifBin. 

Surely such a career as this — which has been drawn in 
mere outline — is deserving of detailed review. 

The work has been done, and well done, in the follow- 
ing Biography. It concerns the life and acts of a thor- 
oughly representative man, a man who in many and di- 
verse fields of action wrought side by side with those who 
built up the Nation and the State. The great value of the 
work accomplished by the author consists in the pains- 
taking accuracy w'ith which he has explored original 
sources of information — much of it hitherto unpublished 
and unknown — and in the admirable manner in which the 
result is presented. To all students of the origin of our 
State and National institutions, particularly in the matter 
of our State judiciary, the work will be welcome, revealing 
the richness and completeness of thorough research in 
territory thought to be barren, but productive of much 
which throws strong light on subjects imperfectly under- 
stood for too long a time. 

HAMPTON L. CARSON. 



I 

His Scottish Origin 

1745 

A far cry it seems to the fall of the clans of Scotland, 
and yet it was only in 1745 that Prince Charles came up 
and fanned the smouldering discontent against the Union, 
which had not been aflame for thirty years. The dissatis- 
fied flocked to his standard reluctantly, fully realizing its 
futility, and before the winter had long passed, the clans 
had received their death-blow at Culloden,^ while the 
Jacobite songs were turned to lamentation over the waste 
places of bonnie Scotland. 

During the summer and autumn months of this com- 
paratively brief revolution there was in that bleak but 
hardy northeastern county of Aberdeenshire, which suf- 
fered so severely, a wife, Elizabeth by name, who was 
about to become a mother.- Whether her husband, Thomas 
Smith, a man in his fifty-fourth year, was with her or was 
in the armies of Prince Charlie and the Earls is not known, 
but one day in October of that year, 1745, she gave birth 
to their first child, a son, to whom she gave his father's 
name.' 

^ The battle of Culloden occurred on April 16, 1746. 

'' Letters in the possession of W. J. De Renne, Esq., of Worm- 
sloe, Savannah, Ga., written by Judge Smith to his mother, are ad- 
dressed "Mrs. Elizabeth Lawrence," as early as 1767 and after the 
American Revolution. This indicates that she was married again 
after the death of Thomas Smith, Senior, to a Lawrence; and the 
fact that a eulogy of Captain James Lawrence, of the " Chesa- 
peake," printed on silk, is preserved among these old letters, has 
raised the query whether some relationship did not exist between 
them. 

^ It was not uncommon in those days for birthdays to neither 
be recorded nor remembered in that part of the country. Even 
so late as September 16. 1804, Judge Smith wrote to his cousin. 
Dr. Peter Smith, of Aldie, in Cruden parish: "Can you inform 
me correctly as to the time of my birth? * * * I believe I am 
58 or 59 next month. I am anxious to have the uncertainty re- 



2 THOMAS SMITH 

The blight that Culloden threw over Scotland's 
mothers, as described by Smollett in his "Tears of Scot- 
land" in 1746, did not fall upon the mother of the child 
Thomas : 

"The pious mother, doomed to death. 
Forsaken, wanders o'er the heath; 
The bleak winds whistle round her head, 
Her helpless orphans cry for bread; 
Bereft of shelter, food and friend, 
She views the shades of night descend, _ 
And stretched beneath the inclement skies, 
Weeps o'er her tender babes, and dies" — 

for she was spared longer even than either father or 
son, and reached the great age of ninety-six years, at least. 
She was in 1809 still living at her own home in Udny with 
her widowed daughter, Jean, where she survived all her 
sons and treasured such letters of her first-born, Thomas, 
as are known to contain facts regarding his early life. 
Born in 1713, she was married near the close of October, 
1744, in her thirty-second year, to Thomas Smith, the 
elder, as his second wife. 

Of Thomas Smith, Senior, personally, little seems to 
be known. Born in 1692 in Aberdeen, he was the younger 
son of Dr. James Smith, of Turnielief, or Turnielove, Cru- 
den parish, Aberdeenshire, a physician who won some- 
thing of a name as an astronomer — a branch of learning, 
by the way, to which his grandson, William, was also 
greatly devoted. Dr. Smith and several generations be- 
fore him, it is said, lived on the Turnielief homestead, 
which afterward became a part of the domain of the Earl 
of Errol. Dr. James Smith's father was William Smith, 
who was born in 1620, the only son of Sir William Smith, 
who died in the year 163 1. Sir William's father, John 

moved and I am afraid Registers were not then kept in your part 
of the country." Dr. Smith, who acted as correspondent for the 
aged mother, writes on March 25, 1805: "Your mother says she 
was married in the end of Octr 1744 and you were born in 
Octr 1745 — so it would appear that your Brother the Dr had 
been right about your age." This letter also gives the date 
of her own birth. Dr. Peter Smith is the physician mentioned by 
Boswell in his Life of Dr. Samuel Johnson, as educated by the Earl 
of Errol. Thomas Smith, Senior, is not in the list of rebels of i745. 
published by Lord Rosebery for the Scottish Historical Society in 
1890, although there are many other tenants of the Countess of 
Errol there. 




Coat-of-Arms 
OK Thomas Smith 
from only known impression, 
in possession of 
\V. J. DeRenne, Esq., 
Wormsloe, Savannah, Georgia. 
"Argent ; an unicorn head 
erased armed proper; on a 
chief wavv gules three 
masclesof the first. Crest: A 
dexter arm in armour, em- 
bowed, proper, holding a 
lance. Motto: Virtute sine 
timore" 



HIS SCOTTISH ORIGIN 3 

Smyth — afterward Smith — who married Agnes Charnock 
of an ancient family of Lancaster, was a descendant of Sir 
Roger Clarendon, son of Edward, the Black Prince/ 

Like Sir William's father, Thomas Smith, Senior, also 
married into an ancient family. His first wife was Eliza- 
beth Duncan, of the celebrated Camperdown family, and 
it was at their home on the banks of the Don, not far 
from Aberdeen, that their sons Charles and William were 
born, the latter on September 7, 1727, almost exactly eight- 
een years before the birth of their half-brother, Thomas 
Smith, Junior. When Mrs. Thomas Smith, the first wife, 
died is not known, nor is it certain where Thomas Smith 
made his new home with his second wife, though in all 
probability it was in Cruden. Certain it is that in her old 
age she expressed a wish to be buried in that place or 
parish, and her son Thomas spoke of a place one mile 
from Cruden as "so near the place of our nativity" and 
Aldie in Cruden parish as "at the place of my nativity"^ — 
so that Cruden parish, if not the village, or old Turnielief, 



^ This ancestry, for the most part, is said by Horace Wemyss 
Smith, in his Life of Rev. Dr. William Smith, to be from records of 
Aberdeen University and Dr. William Smith's own manuscript. As 
he is in error regarding the name of Judge Smith's mother, and 
Charles being a full brother, an attempt has been made to confirm 
the other facts ; but the librarian of Aberdeen University writes 
that they have no record of the ancestry of Dr. William Smith. 
On the other hand, it seems to be correct in the name of Judge 
Smith's father, as most of the De Renne papers confirm it, al- 
though one letter from Mrs. Margaret M. Smith, of Banfif, on De- 
cember 26, 1885, makes her great-grandfather, James Smith, 
brother of Thomas, Senior, the father of Judge Thomas and Dr. 
William Smith, and his home to have been Toddle Hills, parish of 
Longside, Aberdeenshire, west of Cruden. George Wymberly Jones 
De Renne was evidently inclined to accept the authority of this 
letter as to who was his great-grandfather. The testimony above 
referred to is a sheet containing matter dictated by Dr. James 
Smith, a son of Dr. Peter Smith, of Aldie, and comments by 
"G. W. S.," the late George Washington Smith, only son of Judge 
Smith. Dr. Peter Smith's father was James, brother of Thomas, 
Senior. In a letter of Judge Smith to Dr. Peter Smith, dated 
January 29, 1807, and calling him "My dear cousin," he speaks of 
"Your Father and Mine, and our Uncle Charley," the only mention 
of Judge Smith's father in all his correspondence. 

^ Letters of December 3, 1784, to Dr. Peter Smith, surgeon at 
Slains Castle, and June 17, 1793, to same who had then bought an 
estate at Aldie. Turnielief is about a mile and a half north of 
Slains Castle; Aldie, about the same distance northwest of Turnie- 
lief. 



4 THOMAS SMITH 

lays strongest claim as Thomas and Elizabeth^ Smith's 
new home in 1744 and the birthplace of their first-born 
son in October, 1745.* 

Passing from Aberdeen about twenty miles up the 
coast, there appear beyond the sandy bay of Cruden the 
lofty red granite headlands of Cruden parish, surmounted 
in those days by the great quadrangular seat of the Coun- 
tess of Errol, Slains Castle, which stood on the very edge 
of the precipice and looked over the "German Ocean" on 
a scene of grandeur, said by Dr. Samuel Johnson, on his 
visit to it in 1773, to surpass anything he had ever beheld/ 
Across those waters to the northeast their nearest neigh- 
bors were the Danes, whose Prince, afterward King 
Canute, in the year 1005, was halted in his conquest of 
Scotland, only a mile west of the Castle, by King Malcolm 
III, and so thoroughly defeated that the place has ever 
since borne the name Crojer Dane, or Kill Dane, now 
abbreviated to Cruden. From the village which sprang 
up about the chapel Malcolm erected there, a parish, 
stretching about a dozen miles up and down the coast, 
and about a third as wide, took the same name. Longside 
and Udny parishes were near at hand, and Peterhead, the 
nearest large port, was but seven miles northward from 
the parish bounds, 

"The natives of this county," says a writer on "The 
Beauties of Scotland," in 1806, "are regarded throughout 
Scotland as an unusually active, vigorous and enterprising 
race of men." No region was known for greater success 
against equally great obstacles in the nature of the country, 
which was chiefly an agricultural and dairying one. This 
region shared, with the rest of Scotland, after the battle 
of Culloden, in that marked economic reorganization which 
caused so much hardship for a long time and led to a great 
deal of emigration to England, America and other coun- 

^ Mrs. Smith's family name is not known. 

^ Through the kindness of Rev. George Jamieson, D.D., of Old 
Aberdeen, the registers of Aberdeen and neighboring parishes have 
been examined between 1736 and 1745, inchisive, and no record of 
the birth of Thomas Smith, Junior, appears there, the region where 
his half-brother WilHam was born. Rev. John Strachan, rector at 
Cruden, says their registers "previous to 1807 are lost." 

^ For the accompanying view of Slains Castle the author is in- 
debted to Rev. J. Strachan, rector at Port Erroll [present spelling], 
Scotland. 




eicrheisd 



? , i^tll "^'"^ Z /K;v»JKucha.- Mesa 

5 ^villlii--^ .« ''Mlllh/)/, '''^^ 11 V>Bcddam C*b1lc Ruin 



TllftNIELlEF OR TuBNIELOVE 



Cruden and Vicinity, Aberdeenshire, Scotland 

after map in 

Lewis' Topographical Dictionary, 1S43 






{ — 



X. 



-s. 



HIS SCOTTISH ORIGIN 5 

tries. Udny parish, for example, which had a population 
of 1322 in 1755, had lost nearly a sixth by the end of the 
century. Episcopalians were more numerous than Pres- 
byterians, and there were many Catholics. No regioa 
prized education more, and the parish schools, good then, 
became most excellent in later years, by virtue of two 
great bequests to them. The dialect of English spoken 
there was much different from that of Burns and Ramsay 
in the South. A tradition comes down to us, too, that 
the Scottish Smiths of these parishes were not usually of 
fair complexion, but were so swarthy that they received 
the sobriquet of "Black-Smiths." 

In these surroundings occurred the birth of Thomas 
Smith, Junior, and although it was in the midst of Prince 
Charles' revolution, with which the Countess of Errol 
quietly, but, it seems, effectively sympathized, the nearest 
skirmish of the war was no nearer than the banks of the 
Don, about two months after his birth. It is interesting 
to note now, and will be helpful later to recall, that at this 
time there was, about seventy-five miles down the coast, 
at St. Andrews, a child two years old, named James Wil- 
son, who was destined many years later to divide legal 
honors with young Thomas in a distant land ; that on the 
opposite side of Scotland, at Campbelton, three years later 
was born to the wife of a poor farmer a son given the 
name Hugh Henry Brackenridge, who was to sit beside 
him on the supreme bench of a great State ; that about 
thirty miles above, at Banfif, on the north coast of this 
point of Scotland, was born, fourteen years later, a child 
named Alexander Addison, who was to be a fellow Presi- 
dent Judge; and that about a hundred miles northwest, 
near the northernmost point of the Scottish mainland, at 
Thurso, was a boy of eleven years, Arthur St. Clair by 
name, of the same family as the Earl of Roslyn,^ who was 
to be one of young Thomas Smith's most intimate friends 
in their struggles in a new land. Five years later, also, 
there was born, a few miles away, a son of the Earl of 
Buchan, afterward famous as Lord Thomas Erskine, 
whose children became friends of those of Thomas and 

^William Henry Smith, the editor of St. Clair's Letters, says 
he was not the grandson of the Earl, as has been supposed, but both 
were descendants of a common ancestor. 



6 THOMAS SMITH 

his brother in the long years that followed.^ Finally, it 
may be noted, that at the time Thomas Smith, Junior, was 
born, there was down at Aberdeen University, some 
twenty miles away, a half-brother of striking talents within 
two years of graduation, William by name, then about 
nineteen years old. 

By the time Thomas was five years old William had 
graduated and gone to London, where his agitation for 
enlarged plans for the parochial schools of all Scotland 
won him a most favorable fame. In 1757, when Thomas 
had reached his thirteenth year, his father had died at the 
age of sixty-five years. ^ His half-brother Charles had 
gone to London and William had gone to America, where 
he was the successful first Provost of the new College of 
Philadelphia in the metropolis of the North American 
colonies.^ ! ■ ' j 

There are indications that life now became something 
of a struggle to the widow and her children, for she now 
had a daughter and, it is believed, other sons, whose 
careers must have been comparatively short, however. 
We know but little of the details of these years. Thomas 
no doubt had the advantages of the parish schools, in which 
Provost William had had so much interest, and with all 
the affection we know to have existed between these 
brothers throughout their long lives, and the repeated 
reference of Thomas to his brother as "my benefactor," 
it would be strange, indeed, if so able and enthusiastic an 

^ In a letter of Judge Smith to Dr. Peter Smith, dated the 3d 
of January, 1805, he speaks of sending a copy of the recently pub- 
lished works of the Provost to London for him, "by Mrs. Cad- 
walader, the widow of the late General Cadwalader and sister to Mr. 
Bond, who is going in the spring to London to reside the remain- 
der of her days with her daughter, who is married to the eldest 
son of the celebrated Mr. Erskine, the brother of the Earl of 
Buchan." 

^ In a letter to Dr. Peter Smith, whom he addresses as "My 
dear cousin," under date of January 29. 1807, he says he is im- 
pressed with the fact that his cousin's father and his own and their 
uncle "each died in his 65th year." 

' The next year, 1758, by the death of the Countess of Errol, 
her nephew. Lord Boyd, son of Lord Kilmarnock, who was be- 
headed at the close of the revolution in 1746. succeeded her as Ear! 
of Errol. His brother, Charles Boyd, spent much time there, and 
in Thomas Smith's letters to Dr. Peter Smith, who became the 
Earl's physician at Slains Castle, there is evidence of Thomas' 
familiarity with their careers. 




Si.AiNs Castle, Aberdeenshire, Scotland 
From a \iL'\v furnished by Rev. J. Strachan, Rector at Port Erroll, Scotland 



HIS SCOTTISH ORIGIN 7 

educator as was the head of the vig-orous young college 
across the sea, on the banks of the Delaware, should not 
have taken great interest in his young brother's education.^ 
In 1762 the brilliant thirty-five-year-old Provost came 
over to England in the interests of his college, and his 
successes were met by the highest honors from both uni- 
versities and ecclesiastical bodies.' Thomas was now 
seventeen years old, and his mother has left record that 
he was "always a good and kind lad" to her, and in later 
years she used to hum over one of what she said was his 
favorite songs: 

"Be kind to me as long as I'm here, 
I'll may be wear away yet." 

Both his elder brothers were now in London, Rev. 
Dr. WilHam and Charles, the latter there in business, that 
of a stationer, it is said, and the same year Thomas left 
Scotland for the metropoHs to live with Charles, of whom 
Thomas' mother had a very high opinion,^ The Provost 
also had so high an opinion of him that he gave his own 
favorite son his name, three years after this date, while 
Thomas himself, writing to his mother, from London, 
under date of September 7, 1767, says: "It is but doing 

^ Gait, the biographer of Benjamin West, says on pages 71-2, 
that Governor Hamilton received a portrait of St. Ignatius which 
suggested to Provost Smith, with whom West was then studying, 
that a portrait should be characteristic and that such art would be 
only inferior in dignity to history. Thereupon West experimented 
upon a portrait of the Provost, which now hangs in the hall of the 
Pennsylvania Historical Society. The accompanying photographic 
reproduction of it is the most successful one yet secured. 

^ The following letter of Rev. Jonathan Boucher, of Castle-Ma- 
gruder, to George Washington, on January 19, 1773, while express- 
ing some limitations in regard to Dr. Smith's education not 
usually known, is at the same time a great testimonial to his 
genius: "The Presidt of the Coll: of Philada, whose abilities are 
unquestionable, was himself brought up in Scotland, in a less 
regular manner, than is the Fortune of scholars in general: &, 
in spite of his great merit, this must be some disadvantage to him 
in the office he holds. By dint of superior genius He has himself 
arriv'd at Emminence in Literature, by a nearer cut, as it were: but 
the bulk of men must be enforced to travel thither along the beaten 
track." 

* In a letter of Judge Smith to his mother, and dated at 
Carlisle, Pennsylvania, December 3, 1784, he says of the Provost's 
son, Charles: "He was not born till three years after I left Scot- 
land," and as Charles' birthday was March 4, 1765, this would make 
1762 the time of Thomas' departure for London. 



8 THOMAS SMITH 

justice to Mr. Charles Smith to inform you that he even 
exceeds your hopes, if possible, for his good nature; he 
has been a father as well as a brother to me, and used me 
just in the same manner as I could have wished to have 
done him had we been in each other's circumstances. You 
will be glad to know, therefore, that he is beloved by all 
who know him."^ 

Thomas was not simply much attached to his half- 
brother, Charles, who, like the Provost, must have been 
many years older than himself, but he was permanently 
impressed with his character and principles. Nearly a 
score of years after this date he writes: "I ascribe much 
of the success I have had in the world (under Providence) 
to those Principles of Truth and Integrity early instilled 
into me by the example of his [referring to the Provost's 
son Charles] Uncle Charles, while I lived with him in 
London — a better man than Charles never lived." ^ 

If Charles Smith was both ''father and brother" to 
young Thomas, there is no doubt he provided for his 
further education, and as the Provost made his head- 
quarters here for the long period of two years, it would 
be strange, indeed, if he was not a still more powerful and 
personal influence in their younger brother's education. 
Any one who has seen the mathematical course, for in- 
stance, which Provost Smith gave young Jasper Yeates 
two or three years before can readily see that two years 
of even occasional direction from Provost Smith would 
have, in that branch, given young Thomas a good grasp 
of even surveying and navigation and still higher mathe- 
matics, as they were then taught, before the Provost re- 
turned to America in 1764. But we know positively that 

^ Although this Charles Smith is given in Horace Wemyss 
Smith's "Life of Rev. Dr. William Smith" as a full brother of 
Thomas, the latter's mother's statement making Thomas her 
eldest son confirms all other evidence that Charles must have been 
a full brother of the Provost, instead. Besides, in another letter, 
when Charles is still alive, Thomas refers to himself as his mother's 
sole surviving son. This letter is addressed in care of Mr. Charles 
Smith, Merchant, Peterhead. It may be possible that he had a 
branch house at the latter place, where he spent part of his time, 
although, of course, this may be another person. It is interesting 
to note here that this is the first letter of Judge Smith known to 
be extant, and that it addresses his mother as "Mrs. Elizabeth Law- 
rence," as has been indicated. 

" The above letter of December 3, 1784, at Carlisle, Pa. 




Copyright, i903 



Rkv. William Smith 

(afterwards D. D.) 

at 30 years of age. 

First Provost of The College of Philadelphia, 

now The University of Pennsylvania. 

Half-tone from photograph of the painting by Benjamin West, 

in possession of 

The Pennsylvania Historical Society 



HIS SCOTTISH ORIGIN 9 

Thomas studied French during the following year, 1765, 
and we also know that throughout his life he had the 
constant self-training habits of an independent student.^ 

It would not have been impossible that he returned 
with his "benefactor," the Provost, in 1764, and continued 
his studies in Philadelphia. Indeed, Justice Charles 
Huston states that he "had arrived from Scotland, a 
young man, about the year 1764,"- and Dr. William 
Smith's biographer positively states that on September 6, 
1766, Thomas and the Provost surveyed and laid out the 
town plat of Huntingdon, Pennsylvania, land then owned 
by Dr. Smith.^ Nor would it be out of the range of proba- 
bility that he might have made a business trip back to 
England in 1767. Charles himself is said to have made a 
trip to America and returned. These would be very at- 
tractive speculations were it not for a solitary letter written 
in that year by Thomas himself, in London. The only 
light we have on this period is to be gained from this letter, 
from which has already been quoted Thomas' tribute to 
his brother, Charles, and for that reason a large part of 
the rest may be reproduced: 

"London, 7th Sept., 1767. 

"Honoured Mother: — I expected before this to have 
sent you something more worth your acceptance than a 
Letter; But as that is not yet in my Power, I could no 

^ In a letter of September 3, 1797, Judge Smith says: "It is now 
thirty-two years since I learned French," which would make it in 
1765. This is the only definite reference to his education that is 
known. In Montgomery's "A History of the University of Penn- 
sylvania," 1749-1770, p. 550, "Thomas Smith" is given as a student 
entered by "Dr. Smith," in 1767; but as "Dr. Smith" also enters a 
"William Smith" the same year, and it seems strange that the 
name should not have been entered "William Moore Smith," this 
does not seem to clarify the problem much. 

^"Huston on Land Titles in Pennsylvania," 1849, p. 341. Judge 
Huston writes so much from memory along here, as he admits, 
that other statements than this one show his details not quite 
reliable. 

^"Life of Rev. Dr. William Smith," by Horace Wemyss Smith, 
Vol. I, p. 397: "On September 6 (1766), Dr. Smith having 
purchased a tract of land on the Juniata, at the mouth of Standing 
Stone creek, went there with his brother, Thomas Smith, afterward 
a Judge of the Supreme Court of Pennsylvania, to survey it. The 
place is where the town of Huntingdon now stands." The place 
was merely a trading-post before. 



lo THOMAS SMITH 

longer forbear to lett you know that I am extremely well 
at present; I wish that I could have the pleasure to hear 
that you are the same, But that I cannot yet have be- 
cause I am going a little way out of London & you 
would not know where to Direct to me, till I write you 
again, which I hope will not exceed 4 months. 

"When you write to me [again] ^ I should take it ex- 
tremely kind, if you would do it in the same free manner 
as you would Speak to your son if he were present; for 
tho' I cannot at present relieve your necessities, yet it 
would give me Pleasure to know the situation of your af- 
fairs, & who have been your real friends, for they are mine 
also. 

"There is nothing that I desire more than to see you 
once more; But I am much afraid I never can have that 
happiness: at least it will be a long time first. 

"I hope I shall soon be able to afiford you some little 
assistance. I cannot absolutely promise you anything but 
this, and this I shall certainly perform, viz. that I never 
shall have any that can be of service to you without shar- 
ing it with you, this my Duty obliges me to do, & my 
inclination goes along with it, & therefore Distance of 
Time & Place shall never eradicate or in the least dimin- 
ish it. 

"Give my love to my Dear Sister & be sure to tell 
her that she must lay aside all thoughts of coming to 
London, at least yet awhile & I absolutely insist that 
she do not come at all without my express consent. I 
hope you know me better than to suppose that I would 
advise her to anything but what I thought for her good. 
You in the country have a little too extravagant notions 
of London, for you generally imagine that every one here 
must be rich & proud; it's very true many make their 
fortunes here, but as far as I [can] judge, for one that 
does so, there are ten miscarry, especially Women — who 
therefore would run the risk [when] the chance is so 
great against them!" 

Thomas Smith was now twenty-two years old, and it 
had been five years since he left Scotland. He was fully 
of age and evidently thinking of America. He never did 

* These indicate mutilation of manuscript. 




College oi- F'hii ai)i;i,1'hia 
(Afterwards University of Pennsylvania) 
West Side of Fourth Street, South of Arch. After a 
in possession of the I'niversity. 



HIS SCOTTISH ORIGIN li 

see his mother again, nor his native land, although he 
had all preparations made for it many years later. It 
would be January, 1768, before his proposed four months' 
trip out of London on business would be finished, and 
then it is, we have reason to believe, that this earnest, 
tender-hearted son and brother, so appreciative of all that 
was high-minded and generous, soon bid his native land 
farewell, and went forth, in a very real sense, to take part 
in the building up of the land of his adoption. 



II 

The America and Pennsylvania He Might Have 

Known in 

1768 

While Thomas Smith was living in London great events 
were taking place that were destined to have much to do 
with his future. Scarcely had he been there a year before 
an end of the bloody Seven Years' War was made, in Feb- 
ruary, 1763, which not only made Frederick II of Prussia 
to be henceforth known as the Great, but by making his 
kingdom a "great power" first established the modern 
world of "the five great powers." Furthermore, the aid 
which England had been giving him in his brilliant fight 
against much of continental Europe, together with her own 
successes against France, made Thomas Smith's native 
land to be looked upon as the leading one of the "five 
great powers." Still further, in that same February there 
was elTected another treaty which closed an even longer 
war which his country and her cis-Allegheny strip of 
American colonies along the Atlantic coast, the home of 
his brother, the Provost, had been waging practically ever 
since Thomas was ten years old, to drive out the French 
from the vast rich territory beyond the Allegheny Moun- 
tains, much of it considered the domain of the Ohio Com- 
pany, formed so long ago as Thomas Smith's third year. 
With what enthusiasm must he have listened to the 
Provost tell himself and Charles of the news of the addi- 
tion to the English colonies of such vast territory as 
Canada, Nova Scotia, all of the vast "New France" or 
"Louisiana" from the Alleghenies to the Mississippi, and 
even Florida! For had not the Provost himself been no 
small influence in it? 

Even so early as 1755 the Provost, alarmed at the 
action of the French and the disinclination of the Quaker 

12 



PENNSYLVANIA IN 1768 15 

Assembly of Pennsylvania to go to war, had sounded a 
warning in "A Brief State of the Province of Pennsyl- 
vania," which was published in London and went to sev- 
eral editions, 

"You were rightly informed when you were told," he 
wrote, "that, of all the British colonies in North America, 
Pennsylvania is the most flourishing. Its staple is chiefly 
Provisions, of which it produces enough to maintain itself, 
and a Hundred thousand men besides. From the port of 
Philadelphia, at least 400 sail of vessels clear out annually. 
The inhabitants are computed at about Two hundred and 
twenty thousand, of whom, it is thought, near one half are 
Germans. Of the Residue not quite two Fifths are Quak- 
ers. Above that number are Presbyterians; and the re- 
maining Fifth are of the establish'd Church, with some few 
Anabaptists." He then proceeds to give the history of 
Quaker control of the Assembly and their refusal to pro- 
vide for defense against the French and Indians, even after 
Washington's and Braddock's defeat, and proceeded to 
suggest more drastic measures to overcome the difflculty. 

This pamphlet had been followed in 1756 by another 
in both Philadelphia and London.^ The former one, he 
said, had fallen like "a Clap of Thunder on our Rulers" — 
the Quaker Assembly.- He pleads for a militia law, for, 
"Instead of 220 miles Distance, as I said they [the French 
and Indians] were before, their scalping-parties have been 
within 65 miles of this city [Philadelphia]." Incidentally 
he says of the settlement of the colony, "all our good 
Lands on this Side the Allegheny Mountains are mostly 
taken up." Speaking of the nature of representation in 
the Assembly, he says: "We have eight counties, and out 
of thirty-six Members, the three old Counties, where the 
Quakers are settled, return twenty-six of the Number. 
The other five Counties, settled with people of many other 

^"A Brief View of the Conduct of Pennsylvania for the Year 
1755." etc. Copies of both pamphlets are at the Pennsylvania 
Historical Society. 

^The Assembly put the Doctor in prison, too, although they 
thought best to release him soon. A humorous account of the 
episode is given in "A Fragment of the Chronicles of Nathan Ben 
Saddi ; etc., Constantinople, 5707," in which Speaker Isaac Norris is 
the Judge; Franklin is Adonis, and Dr. Smith is Shimei, not to 
mention more of the characters. The production sounds very like 
Dr. Smith's work. A copy is at the Ridgway Library, Philadelphia. 



14 THOMAS SMITH 

denominations, especially Presbyterians, from the North 
of Ireland, send only the ten remaining Members among 
them. This was the policy of the Quakers at the first 
Erection of the five last Counties ; by which means, to- 
gether with their Artifice among the Germans, the Quak- 
ers are always a vast Majority in the Assembly, altho' 
they are not near one fifth of the People in the Province." 
He added a postscript on December 15, saying that the 
day before some "Dutch" from 60 miles up the State had 
brought the bodies of some of their scalped countrymen 
"and threw them at the Stadt-House Door, cursing the 
Quaker principles," and threatening violence. One can- 
not read it without feeling the excitement of the time, 
and also realizing that the Provost was certainly filled 
with the imperial ideas of a British statesman, resident in a 
colony, rather than those of peaceful Friends. It would 
be interesting to know what an impression these pam- 
phlets made upon young Thomas, if he ever read them in 
later years, or the "History of New York" published by 
his brother the following year. There can be no question, 
however, of the influence of such a brother's association 
in those years, 1762-3, in London, when news came of 
the treaty giving the colonies the vast trans-Allegheny 
region in February of that latter year. 

Now, at the time the Provost wrote his "A Brief State," 
in 1755, a map of the Middle British colonies was made 
and published by Lewis Evans, which is here reproduced 
as giving the best conception of Pennsylvania and the 
surrounding colonies at that time.^ This and Evans' earlier 
map of 1749 were the chief maps in use for the next fifteen 
years, or until young Thomas Smith aided in surveys for a 
new one. Here he would see a country that would look as 
wild, vague and unknown as a map of Africa does to-day. 
Here was Burlington, the largest place in New Jersey. 
Philadelphia led in Pennsylvania, with Lancaster second, 
while round about east of the "Alle-geni" Mountains, or, 
rather, the Kittatinny Mountains, were "Norriton," Bris- 
tol, "New Town," Chester, Reading, Ephrata, York and 
Harris Ferry, with Carlisle, York, Shippensburg, Rays 
Town (later Fort Bedford), and nothing else to the west- 

^ From the copy in, the Pennsylvania archives. 



•W, -itt -iKif 















^^n^f«a. e^ .i^^ittfVfua. /k^*j^*^wa< 










MAP OF PENNSYLVANIA ANI 

KROM 

Lkwis Kvans, in Ti 







iBORING COLONIES IN 1755 

P BY 

iVl VANIA ARC'HIVKS 



PENNSYIvVANIA IN 1768 15 

ward except Fort Du Quesne at the forks of the Ohio. The 
Delaware Indians were located west of the North Branch 
of Susquehanna, and the Shawnees beyond, on the Ohio 
and Allegheny rivers. No boundary of the Province to 
the west and north is marked, because none had been run. 
Almost the entire map is a witness to the vague knowledge 
that even the best of surveyors and map-makers possessed. 
It was a land awaiting the transit and chain of the sur- 
veyor, as one far-seeing young Virginian of twenty-three 
years, when this map was made, proved by becoming a 
surveyor himself. 

Three years after this map was made General John 
Forbes and this young Virginian, Washington, had started 
by way of Rays Town to attack Fort Du Quesne, and make 
a new road to it, which was destined to be a factor in 
young Thomas Smith's future activities. General Forbes 
was successful, and renamed the place Fort Pitt, after 
the statesman who had planned the campaign. It was six 
years before the Indians had to be effectively punished 
again at Fort Pitt, the very next year after that treaty of 
February, 1763, before mentioned, and the same year that 
the Provost returned from his two years' residence in 
England. Colonel Henry Bouquet, who was also a part of 
the former expedition, was successful in this one, and 
after his return to Philadelphia, in January, 1765, the Pro- 
vost, Dr. William Smith, who was an influential friend of 
Bouquet, wrote an elaborate account of the expedition, 
with a careful additional study of the Indians and methods 
of warfare with them, which reminds one of two nations' 
recent studies of how to fight Boers and Filipinos. 

In his introduction, the Provost says: "To behold the 
French, who had so long instigated and supported the 
Indians in the most destructive wars and cruel depreda- 
tions on our frontier settlements, at last compelled to cede 
all Canada, and restricted to the western side of the Missis- 
sippi, was what we had long wished, but scarcely hoped 
an accomplishment of in our own days." After speaking 
of the Shawnees, Delawares and other Ohio tribes taking 
the lead in this new Indian war, he tells of the condition 
that led to Colonel Bouquet's expedition, saying: "Onlythe 
forts of Niagara, the Detroit and Fort Pitt remained in our 
hands, of all that had been purchased with so much blood 



i6 THOMAS SMITH 

and treasure." News of the surrender of the other forts 
had "depopulated a great part of our frontiers." His ac- 
count of Colonel Bouquet's successes seems to be written 
quite as much as a helpful study of further relations with 
the Indians, if not more so, than as a historical narrative. 
As the commander had been made a general, in charge of 
the southern district of America, it was felt that a lasting 
peace had been established. Thomas and Charles Smith 
must have read this book in London some time late in 
the year, with the greatest interest, for it was published 
in the summer of 1765, about the time the Provost's son 
Charles was born. To a young man of twenty years, full 
of high ambitions, and these further stimulated by the 
brilliant part his brother was taking in the colonies, this 
story must have been very suggestive of possibilities for 
his own life. 

There were other events of this year 1765 which must 
have appeared strange to him, as to many another in Eng- 
land at that time. Great Britain had quietly bought the 
right to collect revenue in a large part of India, and with 
it the liberty of that people. She had also taken it for 
granted in the previous February that her American col- 
onists would let her tax them, too, to pay off the great 
war debt largely contracted in their behalf. She was sur- 
prised to learn, late in the year, that in October, at New 
York, the united colonies, in a congress assembled, had 
plainly reminded them that while they might have taxed 
themselves further to pay for these long, bloody wars, no 
one else had the power to do so, and, furthermore, they 
would make it understood they were not natives of India. 
On December 18 Dr. Smith wrote the Dean of Gloucester: 

"With regard to the Stamp Act, or any act of Parlia- 
ment to take money out of our pockets, otherwise than 
by our own representatives in our colony legislatures, it 
will ever be looked upon so contrary to the faith of char- 
ters and the inherent rights of Englishmen, that amongst 
a people planted, and nursed, and educated in the high 
principles of liberty, it must be considered as a badge of 
disgrace, impeaching their loyalty, nay, their very brother- 
hood and affinity to Englishmen, and although a superior 
force may, and perhaps can, execute this among us, yet 
it will be with such an alienation of the affections of a 



PENNSYLVANIA IN 1768 17 

loyal people, and such a stagnation of English consump- 
tion among them, that the experiment can never be worth 
the risque."^ 

If so loyal a British colonial statesman as Dr. Smith 
held this conviction, it foreshadowed the apparent yielding 
in the matter in the repeal of the offensive laws the follow- 
ing March, although George III made it plainly known 
that he still wanted the American colonists to surrender 
the power of taxation, as tractable India had done. 
Thomas Smith must have made an impressive mental note 
of this event, for it was to become vitally influential in his 
life for many a year to come. As the event had plainly 
awakened in King George's mind a realization of the 
power and independence of these colonies, so it revealed 
a new America to the world of thinking men, and must 
have aroused a corresponding interest in them, as such 
aggressive actions always do. If anything would have led 
Thomas Smith to a more particular knowledge of the col- 
onies, and Pennsylvania in particular, scarcely anything, 
unless it would be his own decision to go there, would 
have caused it more than this evidence of the power as 
well as the spirit of her people. It was not unlike the chal- 
lenge of Frederick the Great that a new power had ap- 
peared, or of Pitt that a new leadership was arising among 
the nations, of which it would be well to take note. Here 
were the united colonies presenting a determined resist- 
ance to the colonial methods of the rising leader of the 
"five great powers," and Pennsylvania was the most flour- 
ishing colony among them. 

While it is not the purpose here to describe the knowl- 
edge of Pennsylvania or America which young Thomas 
Smith then had or afterward secured, a result as impos- 
sible as it would be interesting; nor to reconstruct that 
peculiarly vague knowledge or body of impressions which 
even the best informed then had, of necessity, as one 
readily sees from contemporary maps and descriptions, it 
is deemed helpful to roughly sketch and suggest in this 
way the events and influences that formed the more inti- 
mate setting of the beginnings of his career in a new land. 



^ Life of Rev. William Smith, D.D., by Horace Wemyss 
Smith, 1879. 



i8 THOMAS SMITH 

as they always shed hght upon and often even explain his 
course. 

With the cessation of Indian difficulties after the Bou- 
quet expedition and the increased immigration, the pos- 
session of lands became still more attractive. Pennsyl- 
vania had always had great difficulty in holding to her 
policy of buying lands of the Indian nations before giving 
titles of them to settlers, and even passed laws forbidding 
settlement on such unpurchased lands. By the time of 
Thomas Smith's birth, in 1745, she had bought territory 
back only to what is now called the Blue Mountains. It 
had been nine years since the latest part of this had been 
secured, and it was four years later before another strip 
was added, carrying the white territory east of the Sus- 
quehanna forward almost to the North Branch of that 
river. This was in 1749, and it was shown on Lewis 
Evans' map of that year. Nine more years passed before 
a new acquisition was made from the natives, this time 
west of the Susquehanna, covering all of that region be- 
tween the Blue range, the Susquehanna and the Allegheny 
range, northward to an east and west line a little below 
the site of the present city of Bellefonte. 

It was in this last-mentioned territory that Dr. William 
Smith began some of the first of his acquisitions of lands 
which not only became a striking feature of his own life, 
but became a familiar feature of the land ofiice and even of 
the Department of Internal Afifairs of our day. The first 
evidence of this desire to acquire some of the new Indian 
lands is in Dr. Smith's first letter to the Superintendent of 
Indian Afifairs, at New York, after the Bouquet expedition, 
dated January 13, 1766,^ in which he says that a friend had 
informed him of the Superintendent's intention to recom- 
mend the friend for a grant of land, and that the friend had 
kindly agreed to share it with him; that if the Super- 
intendent saw his way clear to do it, Dr. Smith was sure he 
had influence, both here and abroad, that would effectually 
support the recommendation. It was in September follow- 

^ Life of Rev. William Smith, D.D., by Horace Wemyss Smith, 
Vol. I, p. 391. Of course Dr. Smith's intimate personal interest in 
this region was due in large part to his activities as an evangelistic 
and educational missionary leader of his Church, in planting 
schools and churches out over the State. 



PENNSYLVANIA IN 1768 19 

ing, it is said, that Dr. Smith, having acquired land on the 
Juniata, covering the site of a trading-post at the mouth of 
Standing Stone creek, went out there to formally survey 
and lay out a town, which took the name of the township 
there called Huntingdon. 

There was both county and township organization 
at this time. It should be remembered that although 
the north and west boundaries were not run, even years 
after this date, the terms of acts creating new counties 
recognized and incorporated them. The first new county 
to be cut from one of the three originals was Lancaster, 
out of Chester, in a most vague act of 1729. Ten years 
later York was cut out on the west side of the Susque- 
hanna, to include the present York and Adams counties, 
and but a few months after this there was, in 1750, carved 
out the vast county of Cumberland. This was to cover all 
west of York county and the Susquehanna, including, ap- 
parently, its North Branch to the limits of the Province. 
Two years later, 1752, the present Berks county lines on 
the northeast and southwest sides, extended to the limits 
of the Province, enclosed a new county called Berks. All 
within the Province to the northeast was to be North- 
ampton county, while a still vast Cumberland county cov- 
ered the remainder of the Province. Of course, titles to 
land were granted by the Penns only in those parts of 
Cumberland, Berks and Northampton which were within 
the limits of purchases of the Indians, so that less than 
half of the last mentioned, scarcely a third of Berks and 
much less than a third of Cumberland were properly sub- 
ject to anything but military settlement before 1768. In 
consequence, a frontier township would open, like the 
county itself, to the western and northern limits. This 
was the state of Pennsylvania county organization in 1752 
and thereafter for nearly twenty years, and, consequently, 
this was the county map of the Province in 1766, when 
Dr. Smith secured his lands on the Juniata river at Stand- 
ing Stone creek. 

Immigration was very great at this time, and the ideas 
of the new arrivals regarding the colony can be gathered 
from a popular account of the North American colonies 
and new lands by Major Robert Rogers, who professed 
an intimate personal knowledge of them, and believed 



20 THOMAS SMITH 

that no one man had seen so much of them as he. It was 
published in 1765^ and republished in 1767. After speak- 
ing of Penn's policy as to Indian lands, he says: "Mr. 
Penn continued in the country upwards of two years, in 
which time he formed such an excellent plan for the gov- 
ernment of the Province as hath since engaged more for- 
eigners to reside here than in any other part of America. 
He likewise laid the foundations of the city of Philadelphia, 
and formed the plan of it, which, for beauty, not only far 
excells any other in America, but is, perhaps, exceeded by 
few in the world. This city is situated between two navi- 
gable rivers, Delaware on the north and the Schulkill 
on the south, which join each other a few miles below, 
and is near 100 miles from the bay where the river empties 
itself. The streets are wide and spacious, with a dry de- 
fended walk on each side, and are exactly strait and 
parallel to each other: the houses in general are well built, 
and make a good appearance, especially some of the public 
buildings, which are not excelled by any in the country; 
such, in particular, is the academy, the state-house and 
several of the churches. The proprietor's seat, which is 
the usual place of the Governor's residence, and is about 
a mile above the town, exceeds any private building in 
America, both in its magnificence and the pleasantness of 
its situation. This city has exceeding beautiful barracks 
for the reception of the King's troops, and has the finest 
market of any on the continent, being of a prodigious 
extent and well built, and as well regulated and supplied; 
in short, scarce anything can afford a more beautiful land- 
scape than this city and the adjacent country, which for 
some miles may be compared to a well-regulated flourish- 
ing garden, being improved, as I have been informed, to 
as great advantage as almost any lands in Europe; there 
are in the city about four thousand houses, and about 
twenty thousand inhabitants" — which he takes for granted 



^ A Concise Account of North America, etc., by Major Robert 
Rogers, London, 1765. With all its crudities, this is a most in- 
teresting- and excellent description of the English possessions in 
North America at this time. This account is taken from the re- 
print of 1767, which was edited and somewhat condensed in that 
issue. A copy of the original edition also may be seen at the Penn- 
sylvania Historical Society. 



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PENNSYLVANIA IN 1768 21 

the reader knows are all within a few blocks of the Dela- 
ware river. 

"Other considerable places in this province," he con- 
tinues, "are, first, Lancaster, about sixty or seventy miles 
from Philadelphia, on the road to Fort Du Quesne or 
Pittsburg, which [Lancaster] is near as large as the city 
of New York:^ and about the same distance from Lan- 
caster, on the same road is Carlisle, and about twenty or 
twenty-five miles beyond it, is Shippesburg [Shippens- 
burg] ; the country between Philadelphia and Pittsburg, 
which are three hundred miles asunder, being pretty well 
settled for two hundred miles from the former, the land 
being uniformly good. The number of inhabitants in the 
whole province of Pennsylvania are upwards of three hun- 
dred and fifty thousand." 

From his excellent summary of the conditions of the 
western wilderness and their tribes, only the following in 
regard to the Ohio Valley can be quoted: "The River 
Ohio rises in several branches; one of which is near 
Presque Isle, on the Lake Ontario, and within six miles 
of the lake; about ten miles down this branch stands Fort 
Du Beauf, from which place it is navigable for canoes and 
small boats quite to the mouth. The course of this branch 
is southerly for seventy or eighty miles below Fort Du 
Beauf, where we had another fort, called Venango. About 
twenty miles above this last fort, on the banks of the 
stream, are several little towns of the Mingo Indians, who 
removed hither from Hudson's River, and now belong to 
those called the Five Nation Indians." This river is joined 
by two or three other streams before it arrives at Fort 
Pitt. 

"Fort Pitt is a regular well-built fortress, kept in good 
order, and well garrisoned: it stands upon the point of 
land between the Rivers Monongahela and Ohio. From 
this the general course of the river is west, inclining to the 
south for near a thousand miles, as the river runs, where 
it joins the Mississippi. At Fort Pitt it is a mile wide, but 
grows much wider before its junction with the Mississippi, 
being joined by several streams in its course thither. 

^ On page 65 he says New York has ''between 2 and 3000 
houses." 



22 THOMAS SMITH 

"As far down the Ohio as the River Wabach, the 
country on each side is claimed by the Five Nations: the 
Shawanees at present inhabit it, who can raise about three 
hundred fighting men; and further eastward, toward Lake 
Erie, Hve the Delawares, who can raise about five hun- 
dred fighting men. These are in league with the Five 
Nations, and hold their lands under them, and are some- 
times called the Six Nations; and all together, since this 
alliance, which is of some years standing, have the general 
appellation of the Six Nation Indians. 

"West of the Wabach, as far as the Mississippi south, 
to where the Ohio joins it, and north to the heads of the 
Wabach and Yeahtanees Rivers, the country is owned by 
the Tweightwees or Yeahtanees Indians, who can furnish 
out about two thousand fighting men. Their chief settle- 
ments are at the heads of the before-mentioned rivers. 

"The country between the lakes and the junction of 
the Ohio and Mississippi, for several hundred miles, and 
the country between Fort St. Joseph and the Green Bay, 
and between Detroit and the Illinois, and even much far- 
ther north than Detroit, is level; the soil excellent, the 
climate healthy and agreeable, and the winters moderate 
and short. Its natural productions are numerous and valu- 
able. It is sufficiently timbered with trees tall and fair, 
and fit for any common use. 

"There is a good coal-mine near Fort Pitt, made use 
of by the garrison for fuel; and what is still more in com- 
mendation of this country, is that it is well watered by 
springs and rivulets, and has an easy communication with 
the whole world from the mouth of the Mississippi, and 
with great part of the interior country of North America, 
by its several branches. Indeed such is the situation of 
this country, that, at or near the junction of the Ohio and 
Mississippi, within a century or two, may possibly arise 
the largest city in the world." 

Fort Pitt was the key to this vast land, and by 1767, 
as has been seen, the road through Lancaster and Carlisle, 
and Forbes' road from Rays Town, or Fort Bedford, on, 
was the main highway to it. It was along this strategic 
road, in the Ligonier Valley, some miles eastward of Fort 
Pitt toward the Laurel Hill, that young thirty-years-old 
Lieutenant Arthur St. Clair secured land in 1764, and by 



PENNSYLVANIA IN 1768 23 

1768 was an established and well-known resident. By this 
time, too, James Wilson, at the age of twenty-six, was 
settled on this highway, beginning the practice of the law 
at Cariisle and Reading, while at Lancaster young Jasper 
Yeates, at the age of twenty-three, had already been 
settled long enough to have a fair practice even at this 
time. On the other hand, young Brackenridge was just 
entering the college at Princeton, and Thomas Smith was 
still in London, both, probably, having already cast long- 
ing glances at this highway to the great West. 

By the time Thomas Smith's four months' trip out of 
London was to close, in January, 1768, Governor John 
Penn and the Assembly at Philadelphia, under the leader- 
ship of Speaker Joseph Galloway, were having much con- 
troversy over the settlement of whites on Indian lands, 
the cause of growing discontent among the Indians. The 
line between Maryland and Pennsylvania had been run 
during the previous year out beyond the Laurel Hills far 
enough to convince Pennsylvanians that Western settle- 
ments in the region of Fort Pitt were in their own terri- 
tory, although they were made largely by Virginians. It 
became evident that the time was about at hand for acqui- 
sition of all the Indian territory now being so persistently 
settled against the law, although a severe statute was en- 
acted, providing for the removal of these intruders. Of 
course, this law did not refer to those military settlements 
made on the road to Fort Pitt to hold that highway open. 
The situation was daily growing more strained, because 
these intrusions had given opportunity for individual con- 
flicts between the two races, which involved the situation 
still more. 

So, also, were the relations between the colonies and 
the government in London growing more irritated, and 
the letters of "A Farmer," which had just begun in the 
Pennsylvania Gazette, at Philadelphia, were sounding a 
warning, saying: "Unless the most watchful attention be 
exerted, a new servitude may be slipped upon us, under 
the sanction of usual and respectable terms." ^ His warn- 
ings proved to be merely expression of what was in the 
heart of almost every colonist: 

* Letter VI, in the Gazette of January 7, 1768. 



24 THOMAS SMITH 

"Hail! Beloved countryman! Farmer blest! 
America's best son — by all cares'd! 
Thrice hail! Thou grand Assertors of her Rights! 
('Tis Nature's cause! 'Tis Nature's God invites!) 
'Long in obscurity they hidden lay — 
'Till thou clear'd the Rust — and bro't 'em forth to-day!' 
Of men most vi^orthy! Freedom's dearest Friend! 
May Heav'n on thee, its choicest Blessings send! 
Grand Advocate of Truth — write on — 'spare not' — 
Thy Farmer's Letters ne'er will be forgot!" — 

was a part of the outburst of one "Son of Liberty" in Mr, 
Bradford's Pennsylvania Journal of the same date. 

Franklin was in London representing the colonies, and 
as Pennsylvania's agent. Whitefield was at the zenith of 
his fame. William Allen was Chief Justice of Pennsyl- 
vania, with William Coleman, John Lawrence and Thomas 
Willing as associates, and the Assembly of the previous 
year had tried hard to perfect a system of Nisi Prius 
Courts by which these Judges should carry justice to the 
remotest corners of the Province, instead of bringing the 
inhabitants to Philadelphia, for it must be remembered 
that local courts were held by Justices of the Peace. Ben- 
jamin Chew was Attorney-General, and, finally, the Sur- 
veyor-General of the Province was John Lukens, under 
whose direction deputies surveyed the new lands which 
had been bought of the Indians ten years before, or were 
now soon to be purchased. 

In these very early months of 1768, while Thomas 
Smith was completing his four months' trip out of London, 
preparations were being made for a new treaty, and, with 
a curious coincidence. Dr. Peters, Rector of Christ Church, 
had long been Secretary of the Provincial Land Office be- 
fore he became Rector, and during that period had ac- 
quired such a familiarity with Indian afifairs that Sir 
William Johnson and his deputy, George Croghan, asked 
the Rector to join them in the forthcoming meeting at 
Fort Stanwix for the settlement of an Indian boundary 
and purchase of lands. Dr. Peters consented to go, if he 
could secure the Provost of the College of Philadelphia, 
Dr. William Smith, to take his place as temporary Rector 
of Christ Church, an arrangement which was readily made. 
This treaty would make necessary a still larger number 
of deputies for Surveyor-General Lukens, and if a young 
half-brother of the temporary Rector of Christ Church 



PENNSYLVANIA IN 1768 25 

should desire to come from London with a beUef that 
here was a fine opportunity for a beginning in a new land, 
there were abundant influences to secure anything for 
which he was fitted. 



Ill 

The Young Scotchman Leaves London to Become a 

Pennsylvania Surveyor 

1768 

Some lime after his return from that four months' trip 
out of London, early in 1768, Thomas Smith left his 
brother Charles and his home on the Thames to settle in 
America. Landing in Philadelphia, he seems to have had 
some experience in miscellaneous surveying for a time, 
either under his brother. Dr. William Smith's, direction, 
or that of Surveyor-General Lukens, or both, for the 
earliest plausible evidence of the young surveyor's work 
that we have is closely and picturesquely related to both 
men.^ 

One of the best -known landmarks in the territory of 
Pennsylvania from the earliest times known to either 
Indians or whites was the Omtjutta, or Juniata, which 
means "Standing Stone," at the mouth of Standing Stone 
creek, at the present city of Huntingdon. This seems to 
have been a venerated monument to the Indians, who, 
tradition says, thought its removal would be coincident 
with their own departure, as it really proved to be, for 
in 1754, when that deceptive treaty was made which gave 

^ The case in 2 Smith's Laws, 155, which is the earliest ap- 
parent evidence of Smith's residence in America, speaks of a war- 
rant issued in 1763, and directed to Thomas Smith for survey, but 
it gives no proof that it was directed to him in 1763, and does 
show that Smith surveyed lands for the parties in 1774, nine years 
later. The warrant was no doubt an unlocated warrant, such as 
often passed from hand to hand long before survey. It is notable 
that the evidence as given in court always says it "appears" to have 
been directed to Smith, as it probably was, but at a far later date. 
Nor does the statement by Horace Wemyss Smith, that he aided 
his brother, the Provost, in the laying out of the plat of Hunting- 
don in September, 1766, bear the most careful scrutiny of the late 
Hon. J. Simpson Africa, the historian of Huntingdon, who him- 
self had a copy of the plat, and states that it was made in 1767, 
with no mention of who was the surveyor. He does mention 
Samuel Finley as surveying some of Dr. Smith's land there m May, 
1766. 

26 



A PENNSYLVANIA SURVEYOR 27 

the whites all of Pennsylvania west of a northwest by- 
west line from near the Susquehanna forks to Lake Erie, 
the Delawares and the Standing Stone disappeared from 
the river which bore its name, Juniata. It is well known 
that this treaty had to ])e replaced by that of 1758, and 
w^as a leading cause of Indian aggressions for ten years 
more. The Standing Stone lands passed from one hand 
to another until, on March 25, 1766, George Croghan 
sold that part called the Standing Stone tract to Dr. 
William Smith, and in 1767 the town of Huntingdon was 
laid out.^ 

It is known that a new Standing Stone was erected, 
for David McMurtrie, who was still alive in 1843, saw it 
as early as about 1776 or ^jy, a stone about eight feet 
high and bearing the date 1768, with the names of 
Surveyor-General John Lukens, his assistant, Charles 
Lukens, and that of young Thomas Smith, who may have 
been then surveying for his brother and assisting the Sur- 
veyor-General, or getting that acquaintance with the new 
lands which would properly prepare him for a Deputy 
Surveyor.^ Whatever he may have been doing, it seems 
strange that these names and this date, 1768, should have 
been placed upon this historic "Standing Stone," unless it 
was to inform all who looked upon it when and by whom 
it was erected. 3 Certain it is that careful students have 

^"An Historical Address. Delivered by Hon. J. Simpson 
Africa, at the unveiling of the Standing Stone monument." 
1896, p. II. 

^"Historical Collections of the State of Pennsylvania," by 
Sherman Day, 1843, p. 370. John Lukens was a grandson of Jan 
and Mary Liicken, one of the families of weavers who came from 
Crefeld, Germany, in 1683, and took part in the founding of Ger- 
mantown, Pa. He was born in 1720, and made his home at Horsham 
until he became Surveyor-General of Pennsylvania and Delaware in 
1761. After that he resided in Philadelphia. He held this position 
until the Revolution, and at the close of that conflict, in 1781, was 
restored to the same position for Pennsylvania. He was known as 
a very able man in these lines, and was one of those chosen to ob- 
serve the transit of Venus in 1769. He retained his position as Sur- 
veyor-General until his death, in 1789. Charles Lukens, who died 
about 1784, was his eldest son and one of his deputies. 

* This "Standing Stone" was destroyed in a drunken melee 
some years ago and part of it was built into the foundation of the 
house of Hon. John M. Bailey, northeast corner of Third and 
Penn streets, and the part bearing the names came into the hands 
of Edward C. Summers, and is on exhibition among the antiquities 
there at the college. 



28 THOMAS SMITH 

shown no proof to the contrary. There would be every 
reason why the Surveyor-General should desire such a 
permanent and well-known landmark restored on the eve 
of the acquisition from the Indians of a vast new territory 
so near at hand. 

On September 7 of that year, Governor John Penn 
wrote the Assembly that he was "obliged to attend a treaty 
shortly to be held with the Indians at Fort Stanwix, for 
the important purpose of settling a general Boundary Line 
between them and this, and the neighboring colonies,"^ 
and on November 5 the treaty was signed and certain 
lands bought of them by the Province, This information 
was conveyed to the Assembly in a message dated the 
i6th of January following (1769), and as the tract was a 
peculiar one, running diagonally across the Province from 
northeast to southwest, narrow in the middle and enlarged 
toward the corners, a clearer idea of it may be gained by 
giving both a description and a map of the boundaries: 

"Beginning in the said Boundary Line," the descrip- 
tion reads, "on the East side of the East Branch of the 
River Susquehanna, at a place called Owegy, and running 
with the said Boundary Line down the said Branch, on 
the East side thereof, till it comes opposite the mouth of 
a Creek called by the Indians Awandae, and across the 
River, and up the said Creek on the South side thereof, 
and along the Range of Hills called Burnett's Hills by the 
English, and by the Indians [ ] on the North 

side of them to the Head of a Creek w^hich runs into the 
West Branch of Susquehanna, which Creek is by the 
Indians called Tiadaghton, and down the said Creek on 
the South side thereof, to the West Branch of Susque- 
hanna; then, crossing the said River and running up the 
same, on the South side thereof, the several courses 
thereof, to the Fork of the same River, which lies nearest 
to a place on the River Ohio, called Kittanning, and from 
the said Fork, by a straight Line to Kittanning, aforesaid, 
and then down the said River Ohio, by the several Courses 
thereof, to where the Western Bounds of the said Province 
of Pennsylvania cross the same River; and then, with the 
said Western Bounds to the South Boundary thereof, and 

^ Colonial Records, Vol. IX, p. 545. 



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A PENNSYLVANIA SURVEYOR 29 

with the South Boundary aforesaid, to the East side of 
the Alleghany Hills, and with the same Hills, on the East 
side of them, to the West Line of a Tract of Land pur- 
chased by the said Proprietaries from the Six Nation 
Indians, and confirmed by their Deed, bearing Date the 
twenty-third Day of October, one thousand seven hundred 
and fifty-eight; and then with the North Bounds of that 
Tract to the River Susquehanna, and crossing the River 
Susquehanna to the Northern Boundary Line of another 
Tract of Land purchased from the Indians, by Deed bear- 
ing Date the twenty-second Day of August, one thousand 
seven hundred and forty-nine; and then, with that North- 
ern Boundary Line to the River Delaware, at the North 
side of the mouth of a Creek called Lechawacsein, then 
up the said River Delaware, on the West side thereof, to 
the Intersection of it by an East Line to be drawn from 
Owegy aforesaid, to the River Delaware, and then, with 
the East Line to the Beginning, at Owegy aforesaid,"^ 

The demands for land in this new territory were plainly 
going to be so large that, from the announcement to tlie 
Assembly on January 16, both the Surveyor-General and 
the Land Office began extensive preparations for it. Sur- 
veyor-General Lukens had been in office eight years, but 
he had apparently not needed many deputies heretofore. 
There had only been twenty-seven different appointments 
altogether, since the time Nicholas Scull was appointed 
for Philadelphia, in 1719, and these were usually for 
counties or parts of counties. Since the year Mr. Lukens 
had entered office Benjamin Parvin had been appointed 
for a part of Lancaster in 1761, while the following year 
Bartram Galbraith received a part of the same county, and 
Parvin and Thomas Lightfoot were appointed to parts of 
Lancaster and Berks, with a part of the latter county 
assigned to John Hartz. All of Cumberland had been 
assigned to John Armstrong in 1750, so six years after the 
treaty of 1758, by which so large a part of Cumberland 
was secured from the Indians, a large part of this was 
given to Deputy Surveyor-General Richard Tea. This 
was on the 20th of September, 1764, and included that 
part of Cumberland county bounded on the west by the 

^ Colonial Records, Vol. IX, pp. 554-5. The space for the Indian 
name is left vacant. 



30 THOMAS SMITH 

Allegheny riclge, on the south by the Maryland line and 
on the east and north by certain "yellow lines" in a map 
annexed to Mr. Tea's commission, which map is lost, un- 
fortunately, and no record of these "yellow lines" remains. 
This was probably the most important deputy's tract yet 
assigned, and afterward caused the most trouble, a set of 
difficulties which young Smith was called upon to un- 
tangle, as will be seen. William Maclay was assigned 
another part of Cumberland, and also the Surveyor-Gen- 
eral's son, Charles Lukens, while William, Matthew and 
Archibald McClean had York county divided up between 
them, all in the same year, 1764. These were the last 
appointments before the announcement of the vast acqui- 
sition by the Governor, on January 16, 1769.^ 

Before going further, one other event that happened 
this month of January must be noted. This was the union 
of two scientific societies of Philadelphia into the present 
well-known American Philosophical Society, Independence 
Square, although it was practically an absorption of the 
"American Society" by the first-mentioned one. Charles 
Thomson, John Dickinson, John Lukens, Thomas Mifflin, 
David Rittenhouse and others of the "American Society" 
had been working at the union for over a year, and Dr. 
William Smith and others had been a committee from the 
other society to cooperate. With the union in January 
came the appointment of a committee on the 7th to ob- 
serve the transit of Venus, which was predicted for the 3d 
of June following. Rev. John Ewing, Joseph Shippen, Jr., 
Esq., Rev. Dr. William Smith, Sur. Gen. John Lukens, 
and others, including David Rittenhouse, were chosen. 
Thomas Penn and Benjamin Franklin sent two telescopes 
from England and the Assembly voted iioo sterling for 
expenses. There were to be three parties, one at Phila- 
delphia, one at Mr. Rittenhouse's residence at Norriton 
(Norristown) and one at Cape Henlopen. With Mr. 
Rittenhouse at Norriton were assigned Dr. Smith, Mr. 
Lukens and Hon. John Sellers, of the Assembly, Dr. Smith 
and Mr. Lukens going out together when the time came. 
The phenomenon w^as observed and reported to the Phil- 
osophical Society by Dr. Smith. The significance of the 

^ Deputy Surveyors' Record Book, Department of Internal 
Affairs, Harrisburg. 



A PENNSYLVANIA SURVEYOR 31 

event, however, in this connection, is the intimacy of Dr. 
Smith and Surveyor-General Lukens, shown by these in- 
cidents of January, 1769, and those which preceded them.^ 

On January 25 Governor Penn called the Board of the 
Land Office together at a special meeting at the Executive 
office. Mr. Hamilton, Secretary James Tilghman, Auditor- 
General Hockley, Receiver-General Physic and Surveyor- 
General Lukens were present and the final arrangements 
made for the opening of the Land Office for applications 
for tracts in the new territory. This settled, Surveyor- 
General Lukens perfected plans for at least a dozen 
Deputy Surveyors to be appointed, and in about two weeks, 
or on February 10, was ready to appoint his first one, 
namely, the young half-brother of the Provost of the Col- 
lege, who apparently had the year before joined him and 
his eldest son in erecting the second "Standing Stone" at 
the new town plot of Huntingdon. 

Thomas Smith and his brother. Dr. Smith, appeared 
at the Land Office that day in Philadelphia and jointly 
gave bond to the amount of two hundred pounds, lawful 
money of the Province, for faithful performance of duty. 
This was done in the presence of Mr. Lukens and Lewis 
Farmer. His commission was made out at the same time 
by Mr. Lukens, and in it his territory was described as 
"bounded Eastward by a due north line to be run from 
the Head of Shaver's Creek to the West branch of Sus- 
quehanna, then up the branch and so far Westward that 
a strait line to be run Southward to the Laurel Hill may 
include all the waters that fall into the West branch of 



^ A letter from Dr. Smith, of so late a date as February 8, 
1774, to Arthur St. Clair, at Ligonier, Westmoreland county, shows 
that the doctor not only knew how to find places for his brother, 
but also for his friends. "At the breaking up of the Assembly, 
Capt. Thomson went to the Governor and got the promise of Mr. 
McCrea's district to be added to his own. Mr. Woods, hearing of 
this, got his friends to represent to the Governor that he had the 
first promise from Mr. Lukens. Mr. Shippen and I likewise told 
the Governor that you had the first promise during Richard 
Penn's administration, and the Governor then declared that if 
you had the first promise, no one else should have it, for that 
there was no person he would sooner oblige than you. But, on the 
whole, as these matters were before he came in as Governor the 
last time, he left Mr. Lukens to declare who was the first applier 
to him and to act accordingly." — "The St. Clair Papers," by Wil- 
liam Henry Smith, Vol. L P- 283, 1882. 



32 THOMAS SMITH 

Susquehanna, then along the Laurel Hill and from the 
same to the Alligheny Mountains still including the said 
waters, then along the said Mountains to that part there- 
of that would be intersected by the line of the new pur- 
chase, then last by Richard Tea's district to the first men- 
tioned boundary." This was his first district, and, as will 
be seen from the map, was almost in the middle of the 
vast new oblong tract stretching diagonally across the 
State. It included about half of the present county of 
Clearfield, a large part of Center and Cambria and parts 
of Huntingdon, Blair and Indiana — all of which was then 
in Cumberland county. 

On the same day, also, he received from Thomas and 
Richard Penn, the proprietors, by whose consent he was 
appointed, full instructions for which he gave the above 
bond for faithful performance. After an introductory 
paragraph regarding his appointment and territory, these 
directions continue : 

"Now know that for your better guidance and direc- 
tion in the execution of the said commission, we have 
thought fit to enjoin the following Instructions for your 
observation. 

"I. You shall faithfully execute every such warrant as 
shall be directed to you to the best of your skill, knowl- 
edge and understanding according to the express words 
and order of such warrants, and no otherwise without 
special leave first hand from us for your so doing. 

"II. You shall not execute any warrant upon any Sur- 
veyed Lands or Manors, or reputed Manor Lands, or on 
any other land appropriated to our use by any former sur- 
vey unless such lands be expressly mentioned in your 
Warrant. 

"III. You shall lay out all Lands as regular and nearly 
contiguous as the places will bear, admit, or allow of, — 
unless directed by ye warrant to the contrary. 

"IV. You shall make returns of every warrant into the 
Surveyor-General's office at Philadelphia with portraited 
figures of the land exactly performed and the Field work 
annexed and that within six months after the receipt of 
such warrants, or order of survey, but if anything happens 
that the survey cannot possibly be performed within that 
time, you shall transmit an account in writing into the 



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A PENNSYIvVANIA SURVEYOR 33 

Surveyor General's office containing the reasons for such 
delay. 

"V. You shall not deliver unto any person whatever 
any Draught, Plot or Field works of his lands before your 
return be made into the Surveyor General's office and 
there be allowed of. 

"VI. You shall not make use of any chain-carriers but 
such as are of known honesty and of good repute among 
their neighbors, which chain-carriers shall take a solemn 
attestation before some magistrate justly and exactly to 
execute their trust without favor, partiality or affection. 

"VII. You shall not make returns of any surveys but 
what hath been actually made by you on the spot — and 
you shall take care that all outlines and bounds shall be 
fairly and visibly marked before you quit the field. 

"VIII. You shall keep fair and regular entries in order 
of time of all surveys and resurveys by you made from 
time to time in pursuance of any warrant or order of sur- 
vey which you shall receive with a draught or plot thereof 
and Field works annexed in Books to be kept by you for 
that purpose, and our surveyor shall from time to time 
have free access to the said Books of entries and other 
papers relating to your office as Deputy Surveyor when 
he shall think necessary, and the said Books of entries 
and other papers relating to your said office shall be by 
you (or those into whose hands your papers may fall after 
your decease) delivered up into the hands of our Surveyor 
General for the time being or such other person as we 
shall appoint when you (or those into whose hands your 
papers may fall) shall be by us thereunto required. 

"IX. Out of all fees that you receive for surveying or 
resurveying of lands or lotts during the force of your 
commission, you shall pay unto our Surveyor General the 
full third part thereof. 

"For the true performance of which Instructions you 
shall give Bond to us with security in the sum of Two 
Hundred pounds and sign a counterpart of these presents 
by Indenture. Signed at Philadelphia by the said Thomas 
Smith the tenth day of February, 1769. 

(Signed) "THOMAS SMITH." ^ 

^ Records of Department of Interior, Harrisburg. 



34 THOMAS SMITH 

The explicit and exhaustive directions given to Mr. 
Smith in these instructions and those that follow were the 
result of long experience in the Land Office, some of 
which, especially in the case of Richard Tea, were even 
then in the minds of its officers, as may be seen further on. 
Mr. Lukens on the same day handed Mr. Smith additional 
instructions, and as they were, for the most part, the 
models used for all the rest of the numerous deputies ap- 
pointed that year and figure largely in the land law of the 
State, they acquire a more than ordinary importance. 
They must also be regarded as a part of that increasingly 
interesting tale of the first plotting of our American lands. ^ 

"In consequence of sundry letters received from the 
j^Qj^bie ^^hg proprietaries," read these additional instruc- 
tions, "and the new regulations in the Land Office, you 
are to observe the following Rules & orders in surveying 
all lands in this province, as a part of your Instructions. 

" i^^ You shall survey for the use of the Hon''^^ the 
proprietaries in regular figures generally one tenth of 
all lands or 500 As out of every 5000 as that you shall 
survey and make return thereof for their use on a War- 
rant dated the I3*^' of October, 1760. 

"2ndiy_ By their direction & order you are not to sur- 
vey on any one warrant more land than ten per cent over 
and above the quantity mentioned in such Warrant with 
the usual allowance of six per cent and this rule you are 
to observe in respect to all past warrants, not yet executed 
as near as reasonably may be. 

"^rdiy. You are not to survey any of the proprietaries 
vacant or unappropriated lands whatever on any ticket or 
order from any person but the Surveyor General nor un- 
less you have a copy of a regular warrant or application 
numbered and to you directed by the Surveyor General 
himself, or his order. 

'<^thiy You shall lay out all Lands that adjoin Rivers 
or large Creeks at least three times the length from the 
river or creek as they are laid in breadth on said river or 
creek, so that each purchaser may have a proportionable 

^ " Huston on Land Titles in Pennsylvania." The author, after 
speaking of Thomas Smith's instructions on page 305, says, these 
are "additional instructions to Thomas Smith," which contain cer- 
tain features found in no other directions to deputy surveyors. 



A PENNSYLVANIA SURVEYOR 35 

front on the water, provided the ground will in any wise 
admit of it, and to lay out all lands, contiguous & as reg- 
ular as possible, and you are to give at least ten days 
notice in each township in your district by fixing up adver- 
tisement or otherwise in one or more of the public places 
therein signifying at what time you will attend in that 
township to execute new applications for all lands there 
requesting all persons concerned to attend and provide to 
have their business completed. 

"^thiy_ You shall execute every application to you di- 
rected & make return thereof into the Surveyor General's 
office within six months after the date of such applications, 
provided the person who shall obtain the same or some 
other person in his behalf will attend and show the land 
to be surveyed & pay for surveying the same as soon as 
completed, but in case the applyer or some person for him 
or her do not show the land and also pay the fees for sur- 
veying as soon as the same is done, or any other reason- 
able cause shall oblige you to delay the execution thereof, 
you shall enter your reasons for not performing the same 
on the back of copies of such applications & transmit an 
account thereof to the Surveyor-General with all con- 
venient speed. And you may observe, by the regulation 
proposed in the Land Office, that much will depend on the 
care & dispatch of the Deputy Surveyor, and I desire the 
people may not have any cause of complaint of your 
neglecting their business. 

"Given under my hand at Philadelphia the tenth day 
of February Anno Domini 1769 

"JNO LUKENS S. G. 

"N. B. You are to give some 
name to each survey you 
shall return to my ofifice. 

"JNO LUKENS, S. G." 

With these instructions of the loth of February, 1769, 
Thomas Smith was a fully fledged Deputy Surveyor, and 
with his transit and chain ready to go to headquarters in 
or near his territory. Three days later, John Biddle was 
assigned territory on the Delaware river part of the pur- 
chase, and in five days Joshua Elder received an assignment 



36 THOMAS SMITH 

adjoining Smith's on the west, while on the i8th territory 
corresponding somewhat to our present Westmoreland 
county, south of the Forbes road, was given to William 
Thompson; that north of the road to Robert McCrea, and 
that west of the Monongahela to James Hendricks. The 
next appointment was on March 31, by which Charles 
Stewart received territory in the northeastern part of the 
purchase. 

Two months had not yet passed, but Thomas Smith 
had made so good an impression, or else his decision to 
make his headquarters at Fort Bedford suggested so much 
convenience in it, that on May 5 the Surveyor-General 
made a considerable and important addition to his terri- 
tory of all south of his first tract, between the Laurel Hill 
and Allegheny Mountains to Forbes' road. This was the 
only district altered. Fifteen days later, all south of that 
between these mountains was assigned to the McCleans — 
Archibald, Jr., Moses and Alexander — while two days after 
this, namely, the 22d, the Surveyor-General gave his eldest 
son, Charles Lukens, a tract adjoining Thomas Smith's first 
territory on the east, in the present Bellefonte region. On 
the 1st and 30th of June the rest of the northern part of 
old Cumberland and a section of it near the Susquehanna, 
given, respectively, to William Maclay and Jasper Scull, 
closed the apportionments for nearly a year, or until it 
became necessary to remove Richard Tea for irregularities 
in his big tract to the east of those of Smith and the Mc- 
Leans,^ 

This was done in April, 1770, after Thomas Smith had 
been at work with his transit and chain for but a little over 
a year. On the 5th, Mr. Lukens assigned the most of it 
to Lieutenant Arthur St. Clair, of the Ligonier Valley, 
who was becoming a warm friend of Deputy Surveyor 
Smith, while two days later the latter received that part 
adjoining his own territory and west of Shaver's Creek and 
the Franks Town branch of the Juniata river. This latter 
covered a large part of what is now Blair county and a part 
of Huntingdon, making his assignment include, with these, 
about a third of Center county, a half of Clearfield, all of 
Cambria, a third of Somerset and a part of Indiana. This 

^ Richard Tea seems to have been incompetent or careless, or 
both. His surveys caused considerable litigation. 




Arthur St. Clair 

Half-tone of the Wellmore engraving from a drawing by 

J. B. Longacre, after the portrait by C. W. Peale 



A PENNSYLVANIA SURVEYOR 37 

large assignment was all covered by his first commission 
and bond of February 10, 1769, when he started for his 
headquarters out in Forbes' road, at the beautiful settle- 
ment of Bedford, only a few miles from the southernmost 
point of his territory. 

Before taking a glance at this settlement, Bedford, which 
was to become Surveyor Smith's home for so many years, 
it will be of interest to note one of the results of the past 
years' work that appeared at the same time this Frankstown 
territory was assigned him. On April 4 of this year, 
1770, there was issued at Philadelphia a new map of the 
Province, made by William Scull. "The cheerful Assistance 
afforded me in this Work," says Mr. Scull, on the upper 
right-hand margin of it, "by the several Deputy Surveyors 
of this Province & by other Gentlemen, demands my Grate- 
ful Acknowledgements; and I take this Opportunity of 
Returning my Thanks, to Joseph Shippen, Jr., Esq'', Pro- 
vincial Secretary, John Lukens, Esq*" Surv : Gen :, M"" Ben- 
jamin Lightfoot, Mess" Maclay, Thompson, Hendricks, 
McKinney, T. Smith, Jesse Lukens, S. Wallis, Tea, Stewart, 
McClean, and Elder, for the several Draughts and Observa- 
tions they furnish'd me with; which have enabled me to 
present the Publick with an Accurate Map, not only of the 
improved Parts of the Province of Pennsylvania, but also 
of its extensive Frontiers, never before laid down with any 
certainty, or Resemblance to Truth — the Western Line 
dividing the Province of Pennsylvania and Maryland run 
by Mess" Mason and Dixon, and the County Lines run by 
Mess" Maclay, Biddle and myself, have been of Great Use 
to me, on this Occasion." "The whole line run by Mess" 
Mason & Dixon is delineated in this Map," he says on the 
lower left-hand margin, "but, considered as a boundary, 
that line should have been extended no farther West than 
somewhere about the Line A B or the true Meridian of 
the 1st Fountain of Potomack, which is the Western bound- 
ary of Maryland. Pennsylvania by the Royal Grant, is 
thus entitled to run due South by the Line A B for about 
50 miles to the Beginning of the 40th Degree and then West 
to the end of 5 Degrees from Delaware." This map, which 
is here reproduced, will repay careful study at this point, 
as giving the best idea of the best current conception of the 
known and unknown parts of the Province in 1770. It 



38 THOMAS SMITH 

will also show the peculiar importance of the region along 
the Forbes road and its leading frontier settlement, Bed- 
ford, which he made his home. 

Bedford, in the passes made by the Juniata, was a post 
of a trader with the Indians, a Scotchman named McRae, 
or, as it was generally spelled, Ray, as early as 1750 (the 
date of the creation of Cumberland county), and the place 
took the name Ray's Town. About two years later it is 
known by the name of another settler, Garrett Pendergrass, 
also a Scotch trader with the Indians, whom the natives 
drove out in 1755. At this time Colonel James Burd, with 
about 300 men, built a road from Carlisle to the place. By 
1757 it became evident that it was such a natural half-way 
house to the forks of the Ohio that it should be fortified. 
By August, 1758, Colonel Forbes' army reached here and 
began his celebrated road from there to Fort Du Quesne. 
On the i8th of March, 1759, at Forbes' death, General 
Stanwix succeeded him in headquarters at the camp at Fort 
Bedford, named in the Duke of Bedford's honor. With 
the army came many of the Scotch-Irish Presbyterians and 
Germans from the Cumberland Valley and settled about 
the fort, and it became the military supply depot between 
Carlisle and Pittsburg. In 1761, the year he was appointed 
Surveyor-General, Lukens had his deputy, John Armstrong, 
lay out a proprietary manor of 2,810 acres, covering the 
site of the settlement. The settlement bore the brunt of 
the Indian troubles, but after the peace of 1765 the Board 
of Property on May 5, 1766, ordered a town of 200 lots to 
be laid out by the Surveyor-General, who completed his 
work in June. On the plan of the town Bernard Dougherty, 
Robert Galbreath, Thomas Smith, George Woods and one 
woman, Phoebe Wolf, are mentioned as lot owners, but it 
does not appear at what date they purchased. These are 
the men, however, with whom the young Deputy Surveyor, 
Thomas Smith, was closely associated for years to come.^ 

Thomas Smith had not made his headquarters at Bed- 
ford very long before James Smith, a young man who had 
a remarkably adventurous career, and was later known as 
Colonel James Smith, a signer of the Declaration, led an 
escapade which captured Fort Bedford, and he used after- 

^ Historical Reminiscences of Bedford, by Hon. William P. 
Schell. 









/.VJYriKIKaS 




PENNSYLVANIA IN 



■t.'i- nlfna y^ /fc*-*«v J'A'^'^ ^ivod^tivw. .A V 'W>.KW*^^«^/ 







^ WILLIAM SCULL 



A PENNSYLVANIA SURVEYOR 39 

ward to boast that this affair in 1769 was the first capture 
of a British fort by the Americans. Colonel James Smith, 
while afterward frequently associated with Thomas, was 
in no way related to him. This escapade, however, was 
nothing more than an ebullition of youthful spirits in a 
rapidly growing frontier settlement of which Bedford was 
the head. Claims were rapidly taken up, and the Deputy 
Surveyors all through this region were well occupied. By 
the time Mr. Smith had been surveying two years there 
was such a demand for a county seat nearer than Carlisle 
that the Government responded to it, and on March 9, 
1771, a new county was carved out of Cumberland, bearing 
the name of its new county seat, Bedford. 

A glance at the bounds of the new county will show 
that Cumberland, while, of course, far larger than at present, 
was a very medium county in size, and Bedford had be- 
come the vast one, covering about half of the Province. 
"Beginning where the province line crosses the Tuscarora 
mountains," says the act, "and running along the summit 
of that mountain to the Gap near the head of Path Valley; 
thence with a north line to the Juniata ; thence with the 
Juniata to the mouth of Shaver's Creek; thence northeast 
to the line of Berks county; thence along the Berks county 
line northwestward to the western bounds of the province ; 
thence southward, according to the several courses of the 
western boundary of the province, to the southwest corner 
of the province ; and from thence eastward with the southern 
line of the province to the place of beginning." This was 
to be the vast new county of Bedford. It will be seen that 
it apparently accepted one of the theories of the western 
boundary, which held that it should be five degrees from 
each part of the Delaware, and consequently follow a gen- 
eral course similar to that of the eastern boundary. It 
also shows that the Berks county line had never been run 
and its intersection with the boundary was unknown. 

A commission, composed of Lieutenant St. Clair and 
Bernard Dougherty, "Esquires," and William Proctor and 
George Woods, "Gentlemen," were made trustees to buy a 
site and erect upon it a court house and prison. The 
former they secured on November 13 of that year on 
the northra.?^ corner of what is now the public square, and 
tradition says that log structures were erected on this site, 



40 THOMAS SMITH 

for use during preparations for the building of the stone 
court house and prison, which was built in 1774 on the 
northwf-^^ corner, the predecessor of the present temple of 
justice on the sonthwest corner. Robert Hanna, Dorsey 
Pentecost and John Stephenson were appointed County 
Commissioners, and Samuel Davidson was made County 
Treasurer, while Lieutenant Arthur St. Clair became Pro- 
thonotary and Clerk of the several courts, in prepara- 
tion for which, as shall be seen, he resigned his post as 
Deputy Surveyor of Richard Tea's old district soon after 
the act creating the county was passed, on March 9. By 
April 16 the several "Justices of Our Lord the King," 
William Proctor, Jr., Robert Cluggage, Robert Hanna, 
George Wilson, William Locheny and William McConnell, 
Esquires, who had been commissioned on the 12th instant, 
held their first court at the inn of Henry Wertz. Here 
Bernard Dougherty moved that the lawyer Robert Magaw, 
of Carlisle, be admitted, and he took the required oath, 
after which Mr. Magaw moved the admission of Andrew 
Ross, Robert Galbraith, Phillip Pendleton, David Sample 
and James Wilson, all of whom became the first Bedford 
county lawyers — a scene with which, if Thomas Smith were 
present, he must have been greatly impressed. Those 
familiar with the history of that region readily recognize 
these men as residents of widely separated parts of Central 
and Western Pennsylvania, while the officers of the county 
were representative of every settled part of the vast terri- 
tory comprised in this new county. 

Knowing that his friend, St. Clair,^ was to resign his 
district, Mr. Smith was soon informed that he was to suc- 
ceed him, and twenty days after the act was passed he was 
appointed by Mr. Lukens "to be Surveyor of the western 
part of the county of Cumberland and part of the county 
of Bedford, formerly the district of Richard Tea." His 

^ Arthur St. Clair was born in 1734, the day or month not being 
known, according to the editor of his Letters, William Henry Smith. 
His father was a younger son and died young. His mother edu- 
cated him at the University of Edinburgh, and he studied medicine 
under Dr. William Hunter, of London, hi 1757 he became ensign 
of the Sixtieth or Royal American Regiment, and was with Am- 
herst at Louisburg in 1758. He was made a Lieutenant in 1759, and 
was at Quebec. He married a half-niece of Gov. James Bowdoin 
at Boston, and in 1762 resigned his commission and lived first at Bed- 
ford about 1764, and soon settled in the Ligonier Valley. 



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A PENNSYLVANIA SURVEYOR 41 

instructions were practically the same as previously given, 
but he was required to give a new bond for five hundred 
pounds, which he did, with Dr. Smith and David Franks, 
another Surveyor, as his security. This was signed by him- 
self and them in the presence of Andrew Hamilton and 
John Little at Philadelphia. It is not clear whether this 
was an addition to his previous territory or not. No other 
deputy was appointed for a year and a half afterward, 
which would incline to the belief that it was an addition, 
which, if true, would make him probably the most important 
Deputy Surveyor in the Province, with his home, Bedford, 
in the midst of his territory. He was now to have another 
two years of uninterrupted work as a Deputy Surveyor be- 
fore any striking new development was to occur. He was 
rapidly impressing his associates, not merely by his ability 
and far-seeing wisdom as Surveyor, but as a character of 
unusual independence and strength, and as a man of edu- 
cation and culture, whose earnest, strenuous and conscien- 
tious endeavor marked him as one fitted for wise leadership 
among them and a prominent part in larger affairs. 
'■'Fewer controversies," wrote Justice Thomas Duncan, of 
the Supreme Court, in 1824, "have arisen on surveys made 
by that most excellent man and fine officer, than have oc- 
curred in the case of any other Deputy Surveyor."^ 

^ McDowell V. Young, 12 S. & R., 130. 



IV 

He Combines the Duties of Lawyer, Prothonotary, 

Clerk, Recorder and Justice with that 

of Surveyor 

1772 

Thomas Smith fully realized that surveying, carried on 
in the wholesale manner that follows the opening of new 
territory to settlement, was to be more or less of a step- 
ping-stone occupation to him, as it was to Washington 
himself. Just how early he thought of a permanent life- 
work, and especially of the law as a profession, is, un- 
fortunately, unknown. But that he had the best of advice 
in regard to it there can be no manner of doubt. Both 
his own and Dr. Smith's letters show that he looked after 
the latter's lands, and that in itself would imply that he 
prepared himself to do it properly. Meanwhile, too, it 
should be remembered that where the courts themselves 
were held by Justices of the Peace unlearned in the law, 
the entry to that profession was often so easy as to be 
very attractive to frontier men of affairs like St. Clair, 
George Woods, Galbraith and others on whom chiefly civil 
life seemed to rest. But Thomas Smith was a thor- 
oughly learned lawyer, and soon proved it by rising to the 
top among his associates at an early day. It has been 
said that he studied in Philadelphia, though there appears 
to be no proof of it, while it is certain that he was care- 
fully studying the law, under some one's direction, during 
his surveyor days, and that, too, before January, 1772. 
That he may have, would be in thorough keeping not only 
with his life-long habits of industry, but his habits as an 
independent student as well, and that he would of necessity 
give most attention to land law is evident from the nature 
of his work and the situation on the frontier. 

It will be recalled that the first court held at Bedford 

42 



LAWYER AND PUBLIC OFFICER 45 

was the April term, 1771, in which, on the i6th, Robert 
Magaw, Andrew Ross, Robert Galbraith, PhiUip Pendle- 
ton, David Sample and James Wilson were admitted as 
attorneys. Wilson had the first case, and he and Galbraith 
had most of the work during that year. Wilson was 
located at Carlisle, and even then showed the ability which 
was to make him probably the greatest expounder of the 
constitution, which he helped to make, in his day, and 
raised him to the greatest supreme bench in the world. 
Sample and Magaw had a number of cases during the year, 
too, and after David Grier, David Espy and George Brent 
were admitted, at the July term, they, too, had a few cases. 
There seems to have been but one other admission that 
year, namely, James Berwick, and none thereafter until 
July, 1773; at least, no record was made of them if there 
were. 

At the January term of 1772, however, a case came 
before the court in which Wilson and "Smith" appear 
against Sample and Galbraith. This docket therefore 
shows that "Smith" began practice, even though no record 
of his admission appears in these dockets or elsewhere.^ 
Now, were this the sole record of his first case, it might 
be uncertain whether, as in another interesting record at 
Carlisle, which will be noted later, this "Smith" might not 
be James Smith, a prominent fellow-lawyer of Wilson 
at Carlisle and York. The matter is settled, however, by 
the private docket of Thomas Smith's practice at Bed- 
ford, which also places his practice as beginning at this 
time.^ The fact that he should appear so much with James 
Wilson raises the query whether or not he may not have 
studied with the man who was to open the first law school 
in Pennsylvania. This private docket is a home-made 
one, as private record books frequently were in those days, 
and contains his cases from 1772 to 1782 at Bedford. This 
year's practice at Bedford, however, shows that George 
Woods, another Surveyor, appears, and there is no record 
of his admission. Wilson, Galbraith and Espy have the 
largest share of the practice. At the April term Smith 
appears with Wilson and Hamilton, against Galbraith and 

^Common Pleas Docket, No. i, Bedford, Pa. 
^This docket is in the possession of C. P. Humrich, Esq., of 
Carlisle. 



44 THOMAS SMITH 

Berwick, and also with Espy, Galbraith, Woods and 
Hamilton, against Wilson, Duncan and Riddle. He also 
has a case with Wilson at the July term, and his name is 
evidently written on the docket by himself, and likewise 
at the October term, where he and Espy appear against 
Sample in an ejectment case. Espy conducts another case, 
this time against Smith, Wilson and Galbraith, and Smith, 
Berwick and Sample have one against Wilson, Espy and 
Galbraith. These are the only cases during this year in 
which he appears. In some of them, however, he may 
have entered the case later, as the record is a continuance 
docket. 

This practice at Bedford or elsewhere, if he had other 
cases, in no way affected his work as a surveyor, for he 
is known to have continued in that position under Mr. 
Lukens until December, 1774, at least, and is believed to 
have served even longer. He was leading a remarkably 
strenuous life at this time, with the growing work of a 
rapidly increasing population, but, busy as he was, he 
undertook still more, and that, too, without resigning his 
work as Surveyor, as Lieutenant St. Clair did when he be- 
came Prothonotary, Clerk and Recorder at Bedford m 
1771. 

The increasing population on the North Branch of the 
Susquehanna had demanded a new county, and it was 
granted March 21, 1772, and given the name Northumber- 
land.^ This had but little influence on the extensive 

^ This was at the petition of inhabitants of Berks and Bedford 
counties. The boundaries were as follows: "Beginning at the 
mouth of Mahontongo Creek, on the West Side of the Susque- 
hanna; thence up the South Side of Said Creek, by the several 
courses thereof, to the head at Robert Mateer's Spring; thence 
West by North to the Top of Tussey's Mountain; thence South- 
westerly, along the Summit of the Mountain to Little Juniata; 
thence up the Northeasterly side of the Main Branch of Little 
Juniata to the Head thereof; thence North to the Line of Berks 
county; thence Northwest, along the said Line, to the extremity 
of the Province; thence East, along the North Boundary, to that 
Part thereof, which is due North from the most Northern Part 
of the Great Swamp; thence South to the most Northern Part of 
the Swamp aforesaid: thence with a Straight Line to the Head 
of the Lehigh, or Middle Creek: thence down the said Creek so 
far, that a line run West-Southwest will strike the Forks of Ma- 
hontongo Creek, where Pine Creek falls into the same, at the place 
called Spread Eagle, on the East Side of Susquehanna: thence 
down the Southerly Side of said Creek to the River aforesaid; 
thence down and across the River to the Place of Beginning." 



LAWYER AND PUBLIC OFFICER 45 

boundaries of Bedford county, but late in that year and 
early in 1773 the increased population about the forks of 
the Ohio, and especially the influx of settlers from Vir- 
ginia, led to a demand for a county seat nearer than Bed- 
ford. This demand was well understood by St, Clair, who 
was a Judge of the court at Bedford at the January term, 
when Wilson, Smith and Espy appeared in a case against 
Galbraith, Ross, Magaw and Woods. St. Clair and Smith 
were both in close touch with the Provincial government 
at Philadelphia, and were correspondents who kept the 
Governor informed on conditions in the West. 

The act creating the new county was passed February 
26, 1773, and it gave all territory surrounded by the great 
branch of the Youghiogeny, the Laurel Hill, the ridge of 
the Allegheny and the ridge separating the Allegheny 
waters from the Susquehanna waters to the purchase line 
at the head of the Susquehanna a west line from these to 
the western boundary, and the last-mentioned and south- 
ern boundaries, to be called Westmoreland county. This 
took ofif not quite a third of Bedford, and left the latter 
for the next eight years, or nearly the whole period of the 
Revolution, a large but irregular county in two parts, held 
together by a narrow strip of between twenty and thirty 
miles width in the present counties of Blair and Cambria. 

On the following day, February 2.J, the Governor made 
out commissions to officers of the old and the new county; 
for Lieutenant St. Clair was, at his own request, made 
Prothonotary of the new county, with Mr, Hanna's house 
beyond Ligonier, just above the present site of Greensburg, 
as county seat, and Thomas Smith was again made his suc- 
cessor, this time assuming the added duties of Prothonotary, 
Clerk and Recorder at Bedford.^ As it took some time for 
these papers to reach their destination, it was the 20th of 
March before Lieutenant St. Clair recorded his last deed 
and the 26th before Surveyor Smith recorded his first one. 
Justice St. Clair still served as a Judge of the court at the 
April term at which Prothonotary Smith began acting as 

^ Thomas Smith was appointed not only to the several offices 
of Prothonotary, Clerk of Common Pleas, Register of the 
Orphans' Court and Recorder of Deeds on the 27th, but also, as 
Justice of the Peace, and consequently a member of the court. 
St. Clair was made a Justice of the Peace and member of the courts 
of both counties that same day. Colonial Records, Vol. X, p. 78. 



46 THOMAS SMITH 

Clerk. His records are far more full and modern than those 
of his predecessor. At this term Galbraith, Wilson, Espy 
and Magaw had the chief practice, although Ross, Brent, 
Berwick and Sample had some cases, too. Smith appears 
in two cases in the July and October terms and the January 
term of 1774. 

On May 11, 1773, Benjamin Chew, Register-General for 
Pennsylvania, made out a commission to Prothonotary 
Smith as Deputy Register of Wills for Bedford county, and 
Mr. Smith had furnished a bond for £500, with County 
Commissioner Bernard Dougherty and Attorney Robert 
Galbraith as sureties, but for some reason it does not seem 
to have been recorded until March 10, 1774. This was 
followed on May 3 by his oath of office as Justice of the 
Peace, with which office he seems to have absorbed a 
large part of the government of Bedford county.^ A man 
who could thus become Surveyor, Lawyer, Prothonotary, 
Clerk, Recorder and Deputy Register of Wills as well as 
Justice of the Peace for this important military post and 
frontier county seat of Bedford, in a residence of about 
five years, was already a man of dominant influence 
in the affairs of not only the county, but the whole 
western part of the Province. It would also make 
him, in a peculiar sense, a representative of the Provincial 
government at Philadelphia in the impending crises, which 
were already showing their first signs in this region. All 
this would tend to strengthen his natural tendency to a 
conservative, wise and careful course. His high character, 
his earnest and intense life of industry, as well as his edu- 
cation and natural ability, had made him a wise and re- 
spected leader of broad, yet conservative, views. 

These activities, added to his previous preparation and 
constant study of the law, were well calculated to give him 
a still wider knowledge of the law, and particularly land 
law, in which so large a part of the litigation of the frontier 

^ His commission, with those of others, was made out by the 
Governor in Council, April 9, 1774, and a dedimus potestatem 
issued to Bernard Dougherty and himself. The following are the 
Bedford Justices: Bernard Dougherty, Arthur St. Clair, William 
Proctor, Jr., Robert Cluggage, George Woods, Abraham Keble, 
Thomas Smith, Thomas Coulter, John Piper, Elias Stillwell. 
Abraham Miley, Richard Hogland, Samuel Davidson, Henry 
Lloyd and William Latta. Colonial Records, Vol. X, p. 163. 



\ . . 






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LAWYER AND PUBIvIC OFFICER 47 

was concerned. This, too, was the only way to learn land 
law. "There was not much wealth, except in land, and not 
many lawsuits, except those relating to the title to land," 
writes the late Justice Charles Huston, speaking of a large 
part of Central Pennsylvania, in which he learned land law, 
and that, too, a score of years later than this.^ "In the Dis- 
trict were titles within the purchase of 1754; and the Land 
Office titles were either Warrants or Locations, of 1766 and 
the following years; titles within the purchase of 1768, and 
these were either Warrants or Applications of 3rd April, 
1769, and the following months, until September; * * * 
No law book had been published of decisions in this State, 
except the first volume of Dallas's Reports. When I learned 
of the titles above mentioned, I did not know in what re- 
spects the one differed from the other. I was determined 
to become a lawyer, and to learn to understand all this; 
but how or where I could obtain the information was the 
difficulty. In Lycoming county, where I settled, were only 
three young lawyers, admitted in the same year, in the 
eastern counties, no one of whom knew any more of land 
titles than I did ; and none of whom ever learned to know 
any more. I became acquainted with some men who had 
been Deputy-Surveyors. * * * j particularly mention 
William Maclay, afterwards of Harrisburg, but then of 
Northumberland, at least in the summer season; from him 
I learned more than from any I had known before; per- 
haps than from all I had known before." 

Justice Huston then indicates how most cases of eject- 
ment tried in the Common Pleas would be taken to the 
nisi prhis courts held in each county by Justices of the 
Supreme Court, and later the Circuit Courts held in the 
same way, but having the records kept locally. "In these 
courts only," he continues, "could I obtain the information 
I wanted ; and regularly, for years, I met the Circuit Court, 
at each county in the District; went in with the court and 
came out when it rose ; with papers before me, and pen in 
hand, writing down the titles on each side, the testimony 
of every witness, the points made as to the admission of evi- 

^" History and Nature of Original Titles to Land in the 
Province and State of Pennsylvania," by Charles Huston, late a 
Justice of the Supreme Court of the State, 1849. This is the man 
who was the teacher of Chief Justice Roger B. Taney. 



48 THOMAS SMITH 

dence, the decision on these points, and the opinions of the 
judge in his charge to the jury. In this I soon acquired 
an aptness and accuracy which are only attained by prac- 
tice." If this method was necessary twenty or more years 
after Thomas Smith became Prothonotary at Bedford, it 
is plain that his varied duties at this time were precisely 
calculated to soon make him an authority in the land law 
of the Province. 

Tradition at Bedford has it that Mr. Smith studied 
law especially during the period he was Prothonotary in 
the court house there, and there is every reason to believe 
he did, but not that this was the beginning of his study. 
The tradition is, no doubt, based upon the first known 
record of his admission, namely, that of readmission of 1778, 
such as occurred everywhere after the Revolution.^ That his 
study was carried on in the old log court house and jail, 
which tradition says was the earliest public building and 
located on the northeast corner of the public square, is, 
of course, true, and also in the stone structure erected 
about the time he recorded his bond as Deputy Register of 
Wills, on the northwest corner of the same square.^ He 
was now in his twenty-ninth year. 

Just how far his practice extended, up to this time, is 
not known. Records of admission before the Revolution 
in most of the counties were very irregular. The nearest 
neighboring county seats were Carlisle, York and Hanna's 
Town. It is known that he practiced at the last-mentioned 
place about this time, but there is no record of his admis- 
sion in the Westmoreland courts. The same is true of 
Carlisle, but at York, where it is known that he frequently 



^ Hon. William P. Schell, who has written so interestingly of 
Bedford's history, states, however, that Thomas Smith practiced 
before his admission. 

^ This structure, of which the only known view is here pre- 
sented, was built in 1774, according to the best authority, and was 
directly north of the present court house. The outside stairway 
faced the east and the other visible side the south. The upper 
part was devoted to court purposes and the lower part and walled 
yard to the uses of a prison. This is a reproduction of a view 
drawn by an old lawyer, John Mower, Esq., when it was about to 
be dismantled. Hon. William P. Schell thinks it accurate, except 
that the stairs came down to the left instead of the right. This 
view was first published in the Bedford Gazette. 




Bkdkord CoiKT HorsK OF 1774 



LAWYER AND PUBLIC OFFICER 49 

had business at an early date,^ he was admitted to practice 
on January 25 of this year, 1774.^ This is the earliest 
recorded admission, so far as is known. 

As to the nisi prius courts, in which he had so large a 
practice at a later date, the records, which, as has been 
intimated, were in the hands of the Supreme Court, have 
been long since so scattered that most records even of his 
busiest years are lost, while of this early time no evidence 
at all remains up to this period, the year 1774. 

^ At the Pennsylvania Historical Society — in the Miscellaneous 
Manuscripts of York and Cumberland counties of 1738-1800, p. 197 
— is a letter from Dr. William Smith to Robert Magaw, of Carlisle, 
in which he desires a certain payment made "to my Brother" at 
York. It is dated July 6, 1772. 

* Data taken from the records by Judge John W. Bittenger, 
York, Pa. 



V 

Warfare with the Virginians, the Indians and 
British in the Opening Revolution 

1774 

If Thomas Smith was leading an intensely busy life 
with his numerous official and private affairs heretofore, 
the year 1774 was not calculated to give him much relief. 
The Province of Pennsylvania, along with others, was de- 
veloping so fast and in so many ways that unsettled ques- 
tions began to clamor for settlement. One of these, with 
which he had much to do, grew out of delay in the location 
of the western boundary, and acquiescence of Pennsyl- 
vania in Virginia's erection of a fort at the forks of the 
Ohio. So early as 1749 Governor Hamilton, at Philadel- 
phia, had proposed the advisability of locating the lines in 
the southwest, when he heard of Virginia making private 
grants of land in that region. This met no favorable 
response, and was followed, five years later, by the Vir- 
ginia fort and grants of land by that colony to encourage 
settlement around it. Pennsylvania objected, but Virginia 
claimed it was in her own territory, according to her sur- 
veyors. The French then took possession and completed 
the project as Fort Du Quesne. Then came General 
Forbes' expedition, late in 1758, and "Fort Pitt," where- 
upon the matter remained quiescent until the Indian pur- 
chase of 1768, when settlers began to rush in from both 
colonies. The partisan spirit which now appeared had 
much to do with the erection of Bedford county in 1771, 
a proceeding which aroused the Virginia Executive to 
take vigorous measures to protect his claim. It was this 
conflict which, more than anything else, led to the erection 
of Westmoreland county in 1773, and it was followed by 
the assumption by Virginia that all territory west of the 
Laurel Hill and south of the Kiskiminetas, Allegheny and 

50 



PjE:NN3yLy£CA.S/iA 




Map of Virginia Claims in Pennsylvania 

showing Counties organized by the former. 

After maps in the Pennsylvania Archives 







^ill 



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»••■•• <■•*■ •JMI*<oa« M». 



'~^. 






"^^ 1 



V; 



'h 



"■^jt*^' 



WARFARE 51 

Ohio rivers was in her West Augusta county. Later this 
iWest Augusta district was subdivided into the three 
counties of Monongalia, Ohio and Yohogania, the last- 
mentioned covering all above a northwest line which would 
nearly divide our present Fayette and Washington counties 
in half. The act creating Westmoreland county had, by 
the shrewd management of Robert Hanna, as St. Clair 
beheved, placed the county seat at Hanna's home instead 
of at Pittsburg, and deliberately kept it there. ^ Had that 
act placed it at Pittsburg, the untoward events which fol- 
lowed might possibly have been prevented. 

To the amazement of the people, or some of them at 
least, there was posted at Pittsburg, on January i, 1774, 
the following advertisement: 

"Whereas, his Excellency John Earl of Dunmore, Gov- 
ernor-in-Chief and Captain General of the Colony and 
Dominion of Virginia, and Vice Admiral of the same, has 
been pleased to appoint me Captain, Commandant of the 
Militia of Pittsburgh and its Dependencies, with Instruc- 
tions to assure His Majesty's Subjects settled on the West- 
ern Waters, that having the greatest Regard to their Pros- 
perity and Interest, and convinced from their repeated 
Memorials of the grievances of which they complain, that 
he purposes moving to the House of Burgesses the Neces- 
sity of erecting a new County, to include Pittsburgh, for the 
redress of your Complaints, and to take every other Step 
that may tend to afford you that Justice for which you 
Sollicit. In order to facilitate this desirable circumstance, 
I hereby require and command all Persons in the De- 
pendency of Pittsburgh to assemble themselves there as a 
Militia on the 25" Instant, at which Time I shall com- 
municate other matters for the promotion of Public Util- 
ity. Given under my Hand, this i^* day of January, 1774. 

"JOHN CONOLLY."'' 

Lieutenant St. Clair, at his home at Ligonier, received 
this on January 12, and at once took means to notify Sec- 
retary of the Province Joseph Shippen, Jr., and also to 
arrest Dr. Conolly before the proposed meeting. This 

^ Pennsylvania Archives, Vol. IV, p. 471. 
^ Colonial Records, Vol. X, p. 141. 



52 THOMAS SMITH 

was done on January 24, and Conolly confined at Pitts- 
burg in the Sheriff's hands. He was, however, released 
by that officer on his honor and promise to appear be- 
fore the court of Westmoreland. He, however, went 
to Virginia and returned by way of Red Stone, where he 
gathered a force of about twenty armed men, on the 28th 
of March. Officers at Pittsburg read to him the riot act, 
but he managed to get control of the fort. On April 4 
George Croghan announced his sympathy with the Vir- 
ginians. St. Clair had long believed he was a chief con- 
spirator in it all. Croghan, it will be remembered, was a 
Deputy Superintendent of Indian Affairs, and held thou- 
sands of acres under Pennsylvania applications at this 
time. 

Conolly kept his word to appear at the Westmoreland 
court, but in a most picturesque manner, well described 
by Thomas Smith, one of the bar, in a letter written in 
court at that time to Secretary Shippen : 

"Sir, The present transactions at this place are so very 
extraordinary that I am perswaded you will be very much 
surprised at the relation of them, if anything that is absurd 
and unwarrantable which originates from Ld. Dunmore 
can surprise you. I think I am warranted in this observa- 
tion by his Lordship's Letter to His Honor, a Duplicate 
of which, together with a letter at the same time to Con- 
nolly we have just had read to us. 

"After Connolly was committed to Gaol in the manner 
you have been informed, the Sheriff let him at large on 
his giving him his word of Hononr to return at the Court; 
he did return indeed and in such a manner as might have 
been expected from his preceeding conduct; we heard 
when we came up to this court that he was mustering a 
large party in order to prevent the Court from sitting; we 
thought that there could not be any foundation for such a 
report; but at the same time we thought it prudent to 
order the Sheriff to raise as many men as he could collect, 
to prevent us from being insulted by a lawless set of men, 
acting under the colour of authority — the time was so 
short that but few were collected on our side and those 
few were ill armed, so that we found ourselves in a very 
disagreeable situation, when we received certain intelH- 
gence that Connolly was coming down with 200 armed 



WARFARE 53 

men; when we found they were at hand the Magistrates 
thought it prudent to adjourn the Court as it was near 
the time; they soon after came down to the number of 
150 or 180, with colours flying, and their Captains, &c., 
had their swords drawn, the first thing that they did was 
to place centinels at the Court House Door, and then 
Connolly sent a Message that he would wait on the magis- 
trate and communicate the reasons of his appearance, the 
Bench and Bar were then assembled in Mr. Hanna's 
House where we sent him word we would hear him; he 
& Penticost soon came down, and he read the Paper which 
will be sent down to his Honour the Governor, with the 
bearer of this; and then he read a Duplicate of Ld. Dun- 
more to our Governor, together with the letter mentioned 
before. 

"The Court^ told him they would soon return an an- 
swer to what he had said (they did not think it prudent to 
do it without consulting together & taking the opinion of 
the Bar) We soon agreed on the terms of the answer, & 
the Gentleman who had the principal hand in forming it 
has done it in such a manner as I am persuaded will pro- 
cure him the thanks of Government; it contains firmness 
and moderation, and as far as I am capable of judging, it 
was not possible to form one more free from exceptions 
in our present situation, one in any other form might have 
been the occasion of altercations ; which might have pro- 
duced under concessions or been attended with the most 
fatal consequences; for I have reason to believe that the 
greatest part of them were wishing for some colourable 
reason to quarrel; the Bench purposed to deliver their 
answer in the Court House; however, in that particular 
they counted without their host, for they were refused ad- 
mittance, & Connolly waited for them at the Court House 
Door; where Mr. Wilson at the request of the Court 
delivered it, & after exchanging Copies they departed 

^ The court was composed of Justices Arthur St. Clair, Alex- 
ander McKee, William Lochry, James Pollock, James Cavet, Eneas 
Mackay, Van Swearing-en and William Bracken. Pennsylvania 
Archives, 1760-1776, p. 480. These were the only ones present. The 
court as commissioned in the creating act on February 27, 1773, 
included also William Crawford, President; Thomas Gist, Robert 
Hanna, George Wilson, William Thompson, Joseph Spear, Alex- 
ander M'Clean, Samuel Sloan and Michael Rugh. Colonial 
Records, Vol. X, p. 78. 



54 THOMAS SMITH 

more peaceably than might have been expected ; however, 
the consequences of such proceedings are too apparent to 
need being enumerated; the administration of Justice must 
be entirely at a stand, & indeed I can not help thinking 
that this mob has collected for that purpose, as I am well 
assured that amongst all of those who assembled there 
was not one single man of any Property; on the contrary, 
the greatest part of them were such as are obliged to hide 
themselves from their creditors or such as are under the 
necessity of taking shelter in this part of the country to 
escape the punishment due to their crimes — it seems Ld. 
Dunmore gave Connolly Blank commissions trusting to 
his own prudence to fill them up; by inserting the names 
of proper persons, Connolly in order to be consistent with 
himself bestowed one of those Commissions on one Tea- 
garden an old fellow who has several times been com- 
mittcd for Felony. I don't inded know that he has been 
convicted; because he has always broken the Goal, once I 
think he was committed to Lancaster Gaol & escaped; his 
character is so well known that those who are the strong- 
est advocates for the present disturbances are ashamed 
of his being appointed one of their Captains. 

"The People in this part of the Country, who would 
wish to enjoy the benefits of Society & would submit to 
any form of Government, are in the most disagreeable sit- 
uation that can be imagined ; their Property, their Liberty, 
and their Lives are at the mercy of a lawless desperate 
banditti! in such a situation they look for, and have the 
utmost reason to expect the protection of that Government 
under which they have settled; what is the most proper 
method to be taken it would be presumption in me to sug- 
gest; there are but two ways, the one, to agree on a tem- 
porary line of jurisdiction until the matter can be finally 
settled, the other to establish a sufficient Garrison at Fort 
Pitt to withstand the Rabble who act under Lord Dun- 
more's commission; it would have been a happy thing for 
this part of the country if this last measure had met with 
success when it was first recommended to the Legislature, 
and indeed sensible people in this part of the country who 
are well afifected to this Government, cannot help drawing 
conclusions from the opposition which that measure met 



WARFARE 55 

with, which I am persuaded could never be the motives 
of those who may have made the opposition to it. 

"The conduct of Ld. Dunmore is really the most extra- 
ordinary, in the light in which the people in this part of 
the country are obliged to view and feel it, that can be 
imagined; to estabhsh the jurisdiction of a dififerent 
Province over the People who have purchased and settled 
and lived for a considerable space of time peaceably under 
this, to establish this jurisdiction by a military force, is 
such an absurd measure, that I believe it will be difficult 
to suppose any man in his senses would have adopted it. 

" I hope you will excuse this incoherent scrawl when I 
inform you that it is wrote in a small room amidst the 
clamour and confusion of a number of People; if you 
think the contents of it are of consequence enough to be 
communicated to his Honour the Governor, I will request 
you to do it, if not you will please excuse this imperti- 
nence of Sir 

"Your much obliged 

"and most humble servant 

"THOMAS SMITH" 



"/I "1 



"Westmoreland Court, April 7, 1774 

Governor Penn had, on January 31, as soon as news of 
the affair was first received, sent a message to Lord Dun- 
more concerning it, saying, among other things, that the 
Mason and Dixon Line had been measured, of course, 
and from that line to a known point in the south line of 
the city of Philadelphia another measure had been taken 
by actual survey, as also from this latter point to that part 
of the River Delaware in the same latitude as Fort Pitt; 
and that from this data most exact calculations had been 
"made by Dr. Smith, Provost of our College; Mr. Ritten- 
house and our Surveyor-General, in order to ascertain the 
difference of longitude between Delaware and Pittsburg, 

'Pennsylvania Archives, 1760-1776, p. 620. The date is here 
given as 1775 but it is so evidently current with the event which 
occurred on April 6, the day before the letter was written, and 
is so used by Major Robert H. Foster, in his sketch of this con- 
troversy in the Third Series, Vol. Ill, p. 490, when he had access 
to the originals, that there can be no doubt that this is one of the 
not rare typographical errors in those volumes. 



56 THOMAS SMITH 

who all agree that the latter is near six miles eastward of 
the Western extent of the Province," and he enclosed the 
drawings to illustrate it. Lord Dunmore's reply was not 
received until March i6, and in that he demanded St. 
Clair's dismissal, making it known that he would hold the 
territory until the matter was settled by the Crown. ^ 

It may be noted that, at this very time, letters were 
passing between the Governors of Connecticut and Penn- 
sylvania, also, in controversy over the former's claim to 
practically the north half of the latter's territory, but as 
Mr. Smith had little connection with it, although his 
brother, Dr. William Smith, had, it is sufficient merely to 
recall the fact. 

Two days after Mr. Smith's letter of April 7 the Gov- 
ernor reappointed him and St. Clair, along with others, 
as Justices of the Common Pleas Court at Bedford. St. 
Clair was no doubt made a member of both courts, in order 
to harmonize their action. A Justice of the Peace was a 
far more important officer in those days than at present, 
as in them was lodged almost the entire government of 
a county, including its Bench of Justice. Consequently, 
St. Clair and Smith were each not only Prothonotary, 
Clerk of Courts, Register of Orphans' Court, Recorder of 
Deeds and Justice of the Peace in the modern sense, but 
also Judge of Common Pleas and County Commissioner.'^ 

Four days after this reappointment, when Mr. Smith 
had returned to Bedford, a messenger, Ephraim Hunter, 
who had acted as Deputy Sheriff of Westmoreland, passed 
through on his way to Philadelphia with further news, 
which Mr. Smith supplemented in the following letter to 
Secretary Shippen: 

"Sir, If you have received my Letter, which I did myself 
the favor to write by Col. Wilson,-^ you will not be surprised 
to be informed of the continuation of the outrages committed 
by the Virginians ; they have now arrested three of the 
Magistrates of Westmoreland county, who are now on their 
way to Augusta Goal, exposed to the insults of the rabble 

^ Apparently the Penns, at this time, were indined to hold the 
theory that the western boundary should duplicate the winding 
course of the Delaware. 

* Mr. Smith's salary as Prothonotary, etc., was £50. Penn- 
sylvania Archives, 1760-1776, p. 602. 

^ George Wilson. Colonial Records, Vol. X, p. 165. 



WARFARE 57 

who are sent as their Guard — the Crime alledged against 
them is, I am informed, the answer which the Court gave 
to Connolly's modest address & proposals. I hope for the 
honour of this Province, that it will not sit calmly looking 
on and see its Magistrates, as its Magistrates, taken by a 
set of lawless men, when they were within its known limits 
— hurried away like Criminals to the Gaol of another 
Province, there to be confined contrary to all Law and 
Justice, to satisfy the whim & caprice of a Man who 
seems either to have totally divested himself of any regard 
to natural Justice, I was going to say to the Law of nations, 
if I might be allowed the expression, or else he is made the 
Tool of a set of desperate men who have more cunning 
than himself, for I have many reasons to think that this 
Scheme was hatched at Fort Pitt; the reasons that could 
induce any man of common sense to take such a Step I 
am at a loss to guess. 

"The Bearer of this was sent down to go to Philadel- 
phia with the account of these proceedings; I thought it 
my Duty to enable him to pursue his journey, by accom- 
modating him with Money — he has acted sometimes as 
under Sherifif, & if the high Sheriff had conducted himself 
in the same spirited unsuspected manner that this man has 
done, I am perswaded these disturbances might have been 
prevented, but he, in the first place, had so little regard to 
his Duty, that he Let Connolly at liberty on his promise to 
return at the Court, and when he was ordered to raise the 
Posse his conduct was a little mysterious, & he was ex- 
tremely backward & remiss ; the bearer can give you far- 
ther information in this particular. 

"I am. Sir, 

"Your Very Humble Servant 

"THOMAS SMITH" 

"Bedford, April 13th, 1774." 

Mr. Smith's commission as Justice having arrived, he 
took the oath of ofiice on May 3. It was four days later 
that the Governor sent commissioners to Lord Dunmore, 
composed of James Tilghman and Andrew Allen, with 
power to bring the Pittsburg matter to a conclusion. Dur- 
ing this brief interval news of trouble between the Vir- 



58 THOMAS SMITH 

ginians and Shawnees began to be rumored, and by May 
20 Chief Cornstalk sent a speech to Justice Alexander Mc- 
Kee, George Croghan, Esq., and Captain John Conolly, 
at Pittsburg, to find out what reparation was going to be 
made for various injuries, especially murders of certain 
Indians. The whole frontier became thoroughly alarmed. 
St. Clair secured a voluntary force of rangers with a 
line of stockades. Conolly's action was such as to make 
St. Clair believe that an Indian war, or threats of one, was 
a part of the design to hold the Fort Pitt territory. When, 
on June 22, Captain Conolly showed St. Clair a letter 
from Lord Dunmore, saying that the Pennsylvanians asked 
too much, and that the captain might arrange a temporary 
boundary ten or twelve miles east of Pittsburg, it looked 
as though his surmises were correct. The inhabitants were 
terror-stricken and fled the country in large numbers. 
Those who remained petitioned the Government of Penn- 
sylvania for aid, and measures were at once set on foot. 
This was late in June, and a meeting was held with the 
Indians at Pittsburg on the 29th, but it became evident 
that there was something more back of Conolly's aggravat- 
ing course toward the Indians. 

Meanwhile, serious as was the aspect of affairs with 
the Indians and Virginians, there was, in these months of 
May and June, a still more serious matter arising to claim 
their attention to the eastward. The storm center was in 
Boston, where, so early as the previous February, their 
Governor had warned them that the King had expressed 
his disapprobation of their committees of correspondence. 
The strained relations in that colony were not lessened, as 
all students of our national history know, and it soon led 
to all those events connected with the closing of the port 
of Boston, as a rebellious city. On May 18 "A Phila- 
delphian," writing in the Pennsylvania Gazette, said : 
"Liberty, Property and Life are now but Names in Amer- 
ica. * * * We dare not call even our Lives our own. * * * 
New York, Philadelphia and Charles Town cannot expect 
to escape the fate of Boston. * * * Our Brethren in Boston 
may perhaps stand in Need of our Counsels." On the fol- 
lowing day. May 19, 1774, Paul Revere arrived in Phila- 
delphia with a letter asking for this very counsel. 

A meeting was at once called for the next day at the 



WARFARE 59 

City Tavern, which was attended by some two or three 
hundred citizens. They appointed a Committee of Cor- 
respondence of nineteen members, among whom were John 
Dickinson, Joseph Reed, Charles Thomson, Dr. WilHam 
Smith, Thomas Mifflin, Thomas Wharton, Jr., and George 
Clymer, who were to take proper action and extend sym- 
pathy. A more vigorous meeting was held on June 28, and 
a circular letter to the counties was prepared by Dr. William 
Smith and John Dickinson, as a means of seeking the senti- 
ment of the people as to appointing deputies for a proposed 
Congress and asking the speaker of the Assembly to secure 
a meeting of that body as soon as possible. They were 
asked to appoint Committees of Correspondence to meet at 
Philadelphia on July 15. On July 4 this local committee 
appointed a sub-committee to make a preliminary draft 
of instructions, which were used as a model in the con- 
vention which met on the 15th at Carpenters' Hall.^ This 
Provincial Convention, in which George Woods repre- 
sented Bedford county, on the i6th appointed John Dickin- 
son, Dr. William Smith, Joseph Reed, William Atlee, James 
Smith, James Wilson, Daniel Broadhead and others a com- 
mittee to draft instructions, and on the 21st these were laid 
before the Assembly then in session at the State House.- 

Incidentally it may be noted that the day before the 
Assembly had voted a loan of iSoo to build court houses 
in Bedford, Westmoreland and Northumberland counties. 

The Assembly on the 22d of July responded by promptly 
appointing Speaker Joseph Galloway and six others as 
delegates to the proposed Congress, Morton and Mifflin 
being among the number, and instructed them that, while 
urging their claims, not to do anything "indecent or dis- 
respectful to the Mother State." 

With the summer of 1774 came increased hostilities be- 
tween the Virginia settlers and the Shawnees about Fort 

^ Three days later James Wilson, at Carlisle, wrote St. Clair, 
at Ligonier: "In the interior parts of the Province the public at- 
tention is much engrossed about the late conduct of the Parlia- 
ment with regard to America, and the steps which the colonies 
ought jointly to take to maintain their liberties; against which, to 
say the least of the matter, a very dangerous blow seems to be 
aimed. A general Congress from all the different provinces will 
certainly be appointed." — "The St. Clair Papers," by William 
Henry Smith, Vol. I, p. 324, 1882. 

'Journals of Assembly, Vol. I, p. i. 



6o THOMAS SMITH 

Pitt, or Fort Dunmore, as it was now called. The careful 
course of St. Clair, and the policy of the Pennsylvania 
government in making it clear to the Indians that the 
Virginians were the cause of the trouble, and that while 
the Pennsylvanians kept careful watch over their lines of 
rangers and stockades, they would seek to avoid becoming 
involved by the actions of ConoUy and Lord Dunmore, 
all contributed to confine the war almost entirely to the 
west side of the Monongahela. Lord Dunmore himself 
came up to Fort Dunmore and issued proclamations, which 
were met by counter-proclamations by Governor Penn. 
Efforts were made to involve Pennsylvania in a conflict of 
arms, but without success. Finally, war with the Indians 
came to a close in October, but before Lord Dunmore left 
for Virginia he caused the arrest of Thomas Smith at Red- 
stone, east of the Monongahela, for acting as a Pennsylvania 
magistrate. He was released on bond to appear before the 
court, which was to be opened December 20 following, but, 
in fact, did not open until February 21, 1775.^ It is not 
known what was the result of this trial or whether it 
occurred. It is not material, however, for while Virginia 
government was to continue some years yet, the impending 
crisis between all the colonies and Great Britain was rapidly 
diverting the attention of all from the temporary truce 
which seemed to be established at the forks of the Ohio. 

With autumn came the Continental Congress and the 
meeting of the Assembly. Bernard Dougherty represented 
Bedford county in the latter. John Dickinson was added 
to the list of delegates to the Congress on October 15. On 
December 8 the Assembly received the report of her dele- 
gates and recommended it to the people two days later. 
On the 23d the Assembly refused Governor Penn's request 
for repair of the barracks. 

While the Assembly were in session another Provincial 
Convention of Pennsylvania also met in Philadelphia soon 
after the holidays, namely, on January 23, 1775, in which 
Bedford was not represented. This convention showed 
that while the colonists wished for restored harmony, they 
also realized that a terrible struggle was before them, and 
made recommendation to prepare for non-intercourse in 

^ Pennsylvania Archives, Third Series, Vol. Ill, p. 495. 



WAEFARE 6l 

trade and dependence on home supplies. This convention 
adjourned on the 28th, and the situation brought forth a 
message, on February 21, from Governor Penn to the 
Assembly, which was still sitting at the State House, plead- 
ing for a wise course in this "alarming crisis." On March 
9 they replied, thanking him, while they at the same time 
added: "We have, with deep concern, beheld a System of 
Colony Administration pursued since the year 1763, de- 
structive to the Rights and Liberties of his Majesty's most 
faithful subjects in America," and now hoped that the 
petition of all the colonies then before the throne might 
succeed. On May i, when a letter came from Franklin, in 
London, stating that troops were to be sent, Governor 
Penn sent a message, with an overture of peace from 
Parliament, assuring the Assembly that this was the first 
colony to receive the overture.^ Two days later they re- 
plied that it was not satisfactory, and even if it were, it 
was now a matter for the united colonies to decide. 

Franklin returned on May 6, and he, Thomas Willing 
and James Wilson were added to the delegates in Congress 
at the State House. Three days later the people of Bed- 
ford county chose their Committee of Correspondence, 
namely, George Woods, Samuel Davidson, Thomas Smith, 
David Espy and George Funk. On June 30 the Assembly 
approved the voluntary military organization of the people 
as Associators and appointed a Provincial Committee of 
Safety to call them out in any emergency and prepare for 
a possible conflict. Franklin was made its President in 
September. Congress was in session almost continuously 
in 1775, and on October 18 it called on the Assembly for 
one battalion. November 25 the Assembly made rules 
for the government of the Associators, by which officers 
were to rank according to the age of the counties. On 
February 22, 1776, came a message from Governor Penn 
on the Connecticut claims in the north part of the 
Province. This must have had a strange sound in a place 
controlled by an Assembly and Congress, both of whom 
were on fire with preparations for a war with his sovereign. 
Four days later Franklin asked, on account of age, that 
he might confine himself to Congressional duties. 

^ Colonial Records, Vol. X, p. 252. 



62 THOMAS SMITH 

While these events were happe»ing at Philadelphia the 
Bedford Committee of Correspondence, of which George 
Woods was Chairman, and Thomas Smith the most in- 
fluential member, was struggling to cooperate, even 
though they were still suffering from the effects of the 
war with the Virginians and Indians and other frontier 
troubles of the past two years. As evidence of the work 
there was for Mr. Smith in these frontier affairs is his 
reply to his friend St. Clair's request for papers and maps 
on the boundary question the previous autumn:^ 

"I am just favored with yours," writes Mr. Smith, "and 
I am sorry it is not in my power to comply with your re- 
quest ; but I have neither of the papers or calculations 
you mention. I have just asked my brother (who is here), 
and he has none of them with him. How far it might be 
expedient in one point of view for the Congress, yet to 
settle even temporary boundaries, might, perhaps, deserve 
some consideration. If such a thing could be done with 
propriety, it would be of the greatest utility to the peace- 
able inhabitants in your count}', and I have always thought, 
since the dispute began, that it was set on foot by a de- 
signing tool, with a more insidious view than was at first 
generally imagined, viz., in order to set the Colonies at 
variance with one another. Could it be viewed in that 
light, it would at present have a greater tendency to a 
speedy settlement amongst the people themselves of a tem- 
porary boundary, without the interposition of the Con- 
gress, than any other argument that could be used. If 
they shall judge it proper to intermeddle in the matter at 
all, and if the Virginia delegate has a real intention of 
settling it in any reason, the Monongahela will be greatly 
in favor of the Virginia [ns], even by Mr. Hooper's map, 
which I have before me, but which I can not venture to 
send up without his permission, and since he made that 
map, which is done by actual survey of the Monongahela, 
he has got the camps of Delawares, by which it appears 
that Fort Pitt lies three or four miles farther east than 

^ The letter is dated Bedford, September 5. 1775. and appears 
in "The St. Clair Papers," by William Henry Smith, Vol. I, p. 
360, 1882. Dr. Smith also writes St. Clair, just the day before, 
saying: "Copies of the calculations by Mr. Rittenhouse and myself, 
signed with our names, were sent to Virginia. I wish I had known 
they would have been of any use on the present occasion." 



John Penti 

Half-tone of etching by 

Albert Rosenthal 

from a painting in possession 

of the family in England 



WARFARE 63 

he has placed it. By comparing his map and your and 
Rittenhouse's hnes, Fort Pitt is at least four and at most 
not much above six miles within this Province, as nearly 
as I can recollect the distance you made it. Mr. Hooper 
may be considered as an undoubted authority on the side 
of Virginia. I believe he is a gentleman of candor and 
veracity, and you know he was a warm and violent 
Croghanite at the time when he made it. I am going to 
the woods tomorrow morning. I need not tell you that 
I write now in haste. P. S. — ^There is not one barrel of 
flour in or about town, and Mr. O'Hara requests you 
would endeavor to supply yourselves, which he thinks you 
can now, after the rain, easily do." 

But this was in September, 1775, and early in the spring 
of '76 the Bedford Committee of Correspondence found 
great difficulty in carrying out the recommendations from 
Philadelphia. They decided to appeal to the Assembly for 
aid, and the petition, which is evidently the work of Mr. 
Smith, reached the Assembly on March 7. It is an ex- 
cellent sample of his ability to plead a cause in the wise, 
cautious, conciliatory and conscientious manner that char- 
acterized his work during his entire life. 

"We think it our Duty," the petition proceeds, "as 
members of the Committee of Correspondence of the 
County of Bedford, humbly to represent to the Honour- 
able House the peculiar situation of that county; by 
Reason of which we flatter ourselves, that the unusual 
Request, which we, in behalf of the Associators within 
the same, are now going to make, will not appear alto- 
gether unreasonable. 

"Our Country is new, and on the Frontiers, — its Inhabi- 
tants few, and scattered amongst the Mountains ; by Reason 
of which they are under much greater Inconveniences and 
difficulties in associating and mustering than those of the 
more interior Parts of the Country, having frequently 
twenty or thirty Miles to ride for that Purpose : This must 
necessarily take up much of their Time, which, on account 
of their being mostly new Settlers, is a peculiar Loss and 
Hardship on them, as it is almost their only Treasure : Yet, 
notwithstanding these Circumstances, we can, with great 
Truth and Pleasure, assure the Honourable House that they 
are not only as unanimous in their patriotic Principles, but 



64 THOMAS SMITH 

as constant in their Exercise, as any in the Province who 
have none of their Disadvantages to encounter; — besides, 
several of the officers and companies have been at a pecu- 
niary Expense in paying Fugal-Men, Drummers, Fifers, and 
for Drums &c. which they could ill afford ; and others of 
them, for this Reason, have not yet been able to procure 
these articles, nor to be taught the Exercise as completely 
as they could wish. — By Reason of our remote and Scat- 
tered Situation, it is impossible for us to receive the neces- 
sary Information in Time to enable us to regulate our- 
selves, according to the Modes recommended to the Counties, 
to transact their Business in ; to this cause it is owing, 
that we could not comply with the Advertisement, pub- 
lished some time ago respecting these articles. — It will per- 
haps be said, let them, such as have not already done it, 
buy and supply themselves with such articles, in the same 
Manner the other Counties have done, and then let them 
deliver in their Accounts of the Expenses incurred, and 
they will be paid in the same regular Manner; — however 
trifling such Expense may appear, yet we are well con- 
vinced, that it is out of the Power of many of them to 
advance Money sufficient for such Purpose : — By this con- 
fession, our County will perhaps appear too insignificant to 
merit any Attention or Encouragement : — To those alto- 
gether unacquainted with the Situation of a Frontier and 
new Settlement, this would appear to be the Case; — but 
when it is remembered, that, upon a late Demand, we, in 
a few Days, raised and sent off a Company of Rifle-Men ; 
— that the greatest Number of our Inhabitants are inured 
to Hardship, and that many of them were in the Service, 
in the late War, particularly against the Indians; these 
circumstances will, we believe, entitle us to some Regard. — 
We therefore beg leave to submit to the Honourable House, 
whether it would not be expedient to empower the Com- 
mittee appointed to settle the accounts of the Associators 
within the Province, to draw on their Treasurer, in Favor 
of your Petitioners, or of such other Persons, in the County, 
as may be thought most proper, such a Sum of Money as 
will answer, in some Measure, these necessary Purposes ; — 
the Persons, to whom it is delivered, to be answerable for 
it ; — the Accounts sent down properly authenticated, in a 
limited Time, and subject to the same Controul the other 



WARFARE 65 

Associators' Accounts have been ; and if it appear that the 
Persons, who shall receive the money, have paid it where 
they ought not, — they are to be answerable in the first 
Instance : We should not think it necessary, that much more 
than Half the Sum paid to equal Number of Companies, in 
any other Part of the Province, should be advanced, as we 
think that will answer every valuable Purpose. — We hope 
our Request will appear the more equitable, when (added 
to the Reasons arising from our Situation) it is considered, 
that, at a future Day, we will have to pay our Proportional 
Part of the very large Sums paid to most of the other 
Associators in the Province, — and indeed our People will 
urge this point so strongly to us, that it will be impossible 
to keep up that Spirit of Unanimity, and that Readiness 
to lend their little Aid, in time of need, in conjunction with 
their more powerful Com-patriots, but they will become 
languid and indifferent, if they see that no Regard is paid 
to their Situation — when they feel that those Advantages 
are denied to them, which it is out of their Power to 
obtain by the same Method which those did, who were not 
under their local and other Disadvantages. — We had twenty 
companies returned to us, which are to be formed into two 
Battalions ; — the Reason this was not sooner done was, that 
we delayed it till we should receive the Articles of Associa- 
tion for them to sign, which they are now doing. 

"As we have no other View, in this Representation, 
than a faithful Discharge of the Trust reposed in us, we 
pray the Honourable House will not construe the only 
Means, w^e could think of, to answer the End, into an 
offence ; we shall be ready, to the utmost of our Power, to do 
our Parts in carrying into Execution any other Method that 
may be proposed, if the Prayer of our Petition shall be 
thought improper; which the Honourable House will be 
pleased to take into their consideration, and their Petitioners, 
as in Duty bound, will Pray, &c. 

"GEORGE WOODS, Chairman, 
"THOMAS SMITH." 

On the nth of March — four days later — the Assembly 
granted this petition in the sum of i200, payable to their 
representative, Bernard Dougherty.^ 

^ Votes of Assembly, Vol. VI. 



66 THOMAS SMITH 

Meanwhile, on the very next day after the petition was 
received, namely, March 8, 1776, the Assembly received 
other petitions from Philadelphia and the back counties, 
asking for increased representation in that body; where- 
upon it was voted that Philadelphia should have four more; 
Lancaster, York, Cumberland and Berks each two more; 
and there should be one more each for Bedford, Northum- 
berland and Westmoreland. John Dickinson and Joseph 
Reed prepared a bill to effect this, John Morton became 
Speaker on the 15th, and increased representation was 
voted on the 23d of March, and an election ordered. 

During the next months a propaganda was in progress 
in various parts of the State to create a sentiment in favor 
of replacing the old Assembly by a Convention. It had been 
in progress with some hopes of success, it seems, for it 
brought a warning from Philadelphia to Lancaster.^ "I 
am desired by some friends of mine," writes Edward Ship- 
pen to Mr. Yeates, "to write you a line by this opportunity, 
to appraise you that a certain bawling New England man 
called Doctor Young,^ of noisy fame together with Joseph 
Barge is going up to Lancaster to endeavor to persuade the 
people there to join in the late attempt to dissolve our As- 
sembly and put everything into the hands of a Convention, 
who it is thought would settle a form of Government not 
very favorable to Liberty. In what way your people may 
stand I know not, but surely they would not be willing to 
give up all our Charter privileges at one stroke; many of 
the people here who even wish for our Independence are 
averse to the measure now proposed, as tending to deprive 
us of some valuable Rights, without an Assurance of a Sub- 
stitute; and the Assembly can as well carry the Resolve 
of Congress into Execution as a Convention." 

April and May were to witness Thomas Smith's intro- 

^ Letter from Edward Shippen, at Philadelphia, to Jasper 
Yeates, at Lancaster, dated May 23, 1776, in the Yeates Papers at 
the Pennsylvania Historical Society. 

^This Dr. Thomas Young, an old acquaintance of Ethan Allen, 
suggested the organization and name of Vermont, it is said, and 
when the petitioners for that State were at Congress in Philadel- 
phia, in 1777, they were much impressed by the new constitution of 
Pennsylvania, and this led to Vermont adopting one almost ex- 
actly like it. The Council of Censors, by Lewis Hamilton Header, 
A.M., Papers from the Historical Seminary of Brown University, 
reprint from the Pennsylvania Magazine of History and Biography. 



WARFARE 67 

duction to larger affairs. The two battalions of Bedford 
Associators were now well organized, and John Piper was 
made Colonel of the first. On April 19 Speaker John 
Morton signed the commission of Thomas Smith as Colonel 
of the Second Battalion of Bedford County Associators. 
His commission, however, scarcely reached him before 
he was elected additional member of the Assembly for 
Bedford, and proceeded to Philadelphia, where, on May 20, 
returns of election were received by the Assembly, and 
Colonel Thomas Smith was admitted without the usual 
oath of allegiance heretofore required of members. It 
is well to note, at this point, that George Bryan of Phila- 
delphia, two days later, asked to be port officer for that 
city, a request which was soon after granted, and serves to 
introduce into these public movements a man with whom 
both Pennsylvania and Colonel Thomas Smith were to 
have considerable to do. 

On June 5 Colonel Smith was introduced to legislative 
work by being placed on the committee to draft instruc- 
tions to the delegates in Congress, with John Dickinson, 
Robert Morris, Joseph Reed, Clymer, Wilcocks and Pear- 
son. Nine days later, June 14, the committee's draft was 
adopted and signed by Speaker Morton, and the most 
notable feature of it was that previous restrictions about 
voting for independence were removed. This was practi- 
cally a preliminary declaration of independence by the As- 
sembly. At the same time, the Assembly received a peti- 
tion from Philadelphia objecting to the present structure 
of that body, the chief objection being that it was partly 
under oath of allegiance to the King and partly not. 
These objections had been abroad for some time, and 
during June had so much influence as to make it difficult 
to secure a quorum. By the 14th they seemed to be in 
despair of securing a quorum any longer, and the situa- 
tion soon had to be solved by radical measures. They 
adjourned on the 14th, without carrying out Congress' 
recommendation to raise troops for the flying camp. 
These objections grew out of the recommendation which 
Congress made on the very day that Colonel Smith be- 
came a member of the Assembly, namely, that each colony 
form a new government not under authority of the King. 
This was virtually asking each Province to make individual 



68 THOMAS SMITH 

declaration of independence before all did — a step which, 
events showed, many in the various colonies hesitated to 
take. 

The Philadelphia committee, when the Assembly 
proved so helpless, therefore called, through its Chair- 
man, Colonel Thomas McKean, a Provincial Conference 
of the various county committees, which met on June i8 
at Carpenters' Hall, Philadelphia, and proceeded at once 
to arrange for an election of delegates to a Constitutional 
Convention to form a new government. So these repre- 
sentatives of Pennsylvania virtually declared the Province 
a free and independent commonwealth on June 19. They 
provided for the meeting of the Constitutional Convention 
on July 15, and themselves adjourned on June 25. 

This June Provincial conference had no intention of 
either itself displacing the Assembly or calling a Con- 
stitutional Convention, which would in itself replace the 
existing government. It was only proposed that the con- 
vention should form a constitution, under which a new 
Legislature should be elected. This was true, notwithstand- 
ing the fact that, even with the election of additional rep- 
resentatives, the existing Assembly had a majority which 
was not inclined to be radical and overthrow its charters 
and precedents which had been built up through nearly 
a century of the most persistent fighting between the As- 
sembly and proprietary. The old Assembly had made 
Pennsylvania liberty and government what they were 
through the long and persistent struggles led by men 
like Speakers David Lloyd and John Kinsey, and it was 
not strange that conservative men, even among those who 
supported armed resistance to Britain, should hesitate to 
overthrow the old Assembly and their charter. It must 
be remembered, too, that the spirit of independence was 
only a new growth, and, while it was taking root in new 
soil every hour, there was some soil it had not yet reached, 
and this was merely a matter of time. It became evident 
that there was a majority of the old Assembly which pro- 
posed to cling to the old charter and continue the As- 
sembly, but Colonel Thomas Smith, while cautious and 
tactful, was not one of that majority. His was that rare 
insight of the pioneer which sees a true middle course in 
a developing crisis, and that equally rare wisdom which 




The Pennsylvania Assembly's Committee 

which first recommended Freedom for their Congressmen to vote 

for Independence, except Isaac Pearson 



WARFARE 69 

steers one's course so as to be constructive. This was 
recognized even at that time, and it soon became plain 
that he w^as to be chosen to form the nev^ government, 
which should make Pennsylvania a new and independent 
commonwealth, as he was already chosen to cautiously, 
tactfully and wisely aid in bringing to a close her status 
as a Province of the King. 



VI 

Member of the Constitutional Convention of 1776 

AND THE New Government of Pennsylvania 

1776 

Out near the western edge of Philadelphia, at the State 
House square, great events were being enacted in that 
month of July, 1776. Men from every colony could be 
seen about the north and south entrances of the State 
capitol and in the hall that joined the two entrances, 
for in the eastern chamber of the first floor there was, 
in almost continuous session, the Congress of colonial 
delegates, carrying out the direction of a war which was 
already under way, and here they continued to meet during 
almost all of the revolutionary struggle, while the Ameri- 
cans possessed this temporary capital. Across the hall were 
the arches of the old Supreme Court room, in which the 
highest tribunal of the State had sat for over thirty years. 
Here, apparently,^ the old Assembly had met since they 
had granted the Congress the eastern chamber. But the 
Assembly had adjourned on the 14th of June, and the con- 
ference of Provincial Committees, which met four days 
later, had chosen to meet a few doors farther down the 
street at the hall of the carpenters' union. This latter meet- 
ing, at the close of their session on the 25th, plainly an- 
nounced that, because of "the sudden and unexpected sepa- 
ration of the late Assembly," it was compelled to undertake 
provision for the militia called for by Congress, although 
it did not presume to do more than "recommend" the 
plans. Practically, however, it became the government of 

* One fact which seems to suggest the Assembly's use of this 
room is that on October 21, 1774, they ordered that the "Bar of 
the Supreme Court" should be removed and a larger one put in its 
place. Whether this was in anticipation of the room's use by the 
Assembly in future or not is not known. Votes of Assembly, 
Vol. VI. 

70 










-. ^ ik 



z = o 



O OJ 

^ 5 

- £ 



THE NEW GOVERNMENT 71 

Pennsylvania, and, in providing for an election of members 
to a Constitutional Convention on Jvily 8, it created a body 
that was to be looked upon at once as that g-overnment. 

Four days before that election was held the Congress 
signed a declaration of independence of all the colonies, 
an act which was, in one sense, scarcely more than the ex- 
pression of what had already occurred in the minds of most 
of the people. Consequently, when the newly elected dele- 
gates to the Constitutional Convention began to gather in 
the old Supreme Court room, across the hall from the 
Congress, on the afternoon of July 15, they at once assumed 
to represent the people of Pennsylvania, and the Congress 
recognized the assumption. Dr. Franklin, now an old man 
of seventy years, stepped across the hall with Colonel 
Timothy Matlack, as a leader of the Philadelphia delegates. 
It was not uncommon then for a man to hold many im- 
portant positions ; indeed, the late head of the Carpenters' 
Hall Provincial Conference was soon to become Chief Jus- 
tice of one State, Representative of another and President 
of the Congress, all at the same time. George Ross also 
came across the hall from the Congress chamber, as head 
of the Lancaster delegates, as did Colonel James Smith as 
a delegate for York. Colonel James Wilson, then a young 
man of thirty-four, remained on the Congress side, as he 
was not a delegate, and Colonel Thomas Smith,^ late of 
the Assembly, a young man of thirty-one years, headed the 
Bedford delegation of eight members.^ 

The convention was scarcely organized, on the after- 
noon of Tuesday, the i6th, with Dr. Franklin as president, 
George Ross as vice-president and Colonel Timothy Matlack 
as temporary secretary, before the Virginia delegates, across 
the hall, handed in a proposition for a temporary boundary 
line, and the Congress sent in communications also. On the 
fourth day of the convention a committee of eleven persons 
was chosen to prepare a declaration of rights. These were 
Mr. Owen Biddle, of Philadelphia; Colonel John Bull, of 
Philadelphia county; the Rev. William Vanhorn, of Bucks 
county ; Mr. John Jacobs, of Chester county ; Colonel George 

^ Journals of Assembly, Vol. I, p. 49. 

^ Thomas Smith, John Wilkins, Benjamin Elliot, Thomas 
Coulter, Joseph Powell, Henry Rhoads, John Burd and John 
Cessna. Journals of the Assembly, Vol. I, p. 49. 



72 THOMAS SMITH 

Ross, of Lancaster; Colonel James Smith, of York; Mr. 
Jonathan Hoge, of Cumberland; Mr. Jacob Morgan, of 
Berks; Colonel Jacob Stroud, of Northampton; Colonel 
Thomas Smith, of Bedford, and Mr. Robert Martin, of 
Northumberland, mentioned in the order of age of counties. 

The convention took up the matter of delegates to the 
Congress, reorganization of the Council of Safety, impress- 
ing the arms of non-Associators, and in every way became 
in fact the government of the Commonwealth of Pennsyl- 
vania. There were now beginning to be, as in all revolu- 
tionary movements, three parties, the extreme conservatives, 
the extreme radicals and those who attempted a wise con- 
structive course. Colonel Thomas Smith was in the con- 
structive class. The radical wing, on the one hand, was so 
rapidly growing in power that it reacted to make the con- 
servatives even more extreme, and this made doubly diffi- 
cult the problems of those who, like Franklin, Robert 
Morris, Colonel Wilson and Colonel Thomas Smith, were 
aiming to be wisely constructive. 

When the delegates to the Congress, Dr. Franklin, 
Colonel George Ross, Clymer, Morris, Colonel Wilson, 
Morton, Dr. Rush, Colonel James Smith and Taylor, were 
chosen, on the 20th, the committee selected to draft instruc- 
tions to them were Colonel Timothy Matlack, Colonel 
Thomas Smith, Mr. James Cannon,^ the professor of 
mathematics in the College of Philadelphia; Mr. David Rit- 
tenhouse, the astronomer, and Colonel Bull. Immediately 
following this, Colonel Smith was also made the second 
member of a committee to confer with the Virginia delegates 
on the boundary question, the other members being Mr. 
Rittenhouse, Mr. Alexander Lowrey, of Lancaster; Mr. 
Biddle,of Philadelphia, and Colonel James Potter, of North- 
umberland. On the 23d, when the matter of deahng with 
non-Associators came up, Colonel Smith was placed on a 
committee to declare what should be high treason and mis- 
prision of treason, with Colonel Ross, Colonel James Smith, 
Messrs. Biddle, Hoge, Clymer and Rittenhouse. To this 

^ Professor Cannon was born in Edinburgh, Scotland, in 1740. 
He came to America, and in 1764 entered the Academy of Philadel- 
phia and matriculated in the college in 1767. He became Professor 
of Mathematics in 1773 and served until his death, January 28, 1782. 
He was the author of the letters signed Cassandra, and became a 
member of the Council of Safety of Pennsylvania at this convention. 



THE NEW GOVERNMENT 73 

committee, also, was assigned the treatment of counter- 
feiting and decision of what moneys should be legal tender. 

On July 24 an important resolution was passed, which 
assigned the Committee on the Declaration of Rights, of 
which Colonel Smith was a member, the duty of also draw- 
ing up "a frame or system of government for this State." 
This placed Colonel Smith on nearly all of the most im- 
portant committees of the Convention. On the next day, 
however, after the Declaration of Independence had been 
ratified, the Committee on Declaration of Rights had re- 
ported, and the Committee on Treason had been asked to 
further amend their report, a very significant addition was 
made to the Committee on "Frame of Government" or 
Constitution, in the persons of Colonel Matlack, Professor 
Cannon, Colonel Potter, Mr. Rittenhouse, Mr. Robert 
Whitehill, of Cumberland, and Colonel Bartram Galbraith, 
of Lancaster, a Surveyor of that county. 

In order to understand this significance one must recall 
that there was at this time a rising popular party in Penn- 
sylvania. Franklin's long absence and his attention to inter- 
colonial affairs since his return had left opportunity for a 
recasting of State leadership, especially of the rising popular 
party as opposed to what was often called the aristocratic 
party. One of the most notable, if not the most influential 
as a political leader, was the port officer of Philadelphia, 
George Bryan, at this time a man of about forty-five years. 
He was a native of Dublin, Ireland, where his father was 
a well-known merchant. He was a Presbyterian, and letters 
from his father soon after the son came to Philadelphia 
show that his family life had been of a most earnest Chris- 
tian tone. He himself became an idealist in his own life. 
He had followed his father's footsteps in commerce at Phil- 
adelphia, but had failed through the misfortunes of others.^ 
He had shown a talent for public life and now soon entered 
upon it. He had been a member of the Assembly, and in 
1764 was one of those who protested against Franklin's 
appointment as Pennsylvania's agent in London, chiefly on 
the ground that he would seek to separate from rather 
than conciliate the mother country. He was, however, a 
leader in the resistance to Great Britain's aggression and 

'^Pennsylvania Gazette, February 2, 1791. 



74 THOMAS SMITH 

was a member of the Congress of 1765. His correspondence 
shows that he was an alert politician, with a large and care- 
fully selected list of correspondents, who kept him informed 
of the inside movements of both local and continental poli- 
tics.^ He was certainly an influential leader of the rising 
radical popular party in Pennsylvania. It is known that 
some of these new members were his correspondents, and 
others are known to have been in sympathy with the popular 
party. Professor Cannon was of this aggressive radical 
wing, and with this addition to the Committee on a Con- 
stitution or "Frame of Government," it became evident 
that that element was in control in this convention. 

On August 2 there came in a memorial from a township 
in Bedford county regarding the new frame of government, 
and on the same day the convention brought the chief 
feature of the conflict to a close by deciding that the Legis- 
lature should consist of "one branch only, under proper 
restrictions." On the next day Colonel Smith wrote his 
friend, St. Clair, at Ticonderoga, an illuminating account 
of it.' 

"I was favored with yours by Colonel Allen," writes 
Colonel Smith, "and I thank you for the unreserve with 
which you communicate your sentiments. I need not say 
that when I found what turn affairs were like to take in 
Canada, I was anxious for my friend. I felt for your situa- 
tion before you wrote. I sincerely believe that the bad suc- 
cess there is owing to the cause to which you ascribe it in 
your letter to our common friend,^ for he does me the 



^ Many of Mr. Bryan's papers have been located in the posses- 
sion of S. S. Bryan, Esq., of Titusville, Pa., and Hon. Wm. F. 
Bryan, Mayor of Peoria, 111. They form a most valuable collec- 
tion, and not only throw much light on his own life, but on his 
times also. 

■^ "The St. Clair Papers," by William Henry Smith, Vol. I, p. 
370, 1882. In a foot-note the editor of these papers says: ''Judge 
Smith was one of the most intimate friends St. Clair had; acted as 
his legal adviser, in which capacity he often told St. Clair he ought 
to choose him guardian to look after his finances — so liberal was 
St. Clair in all money transactions — and held the same political 
views. Although a member of the convention that framed the 
Constitution of 1776, he was never reconciled to some of its pro- 
visions, and afterward united with James Wilson and Arthur St. 
Clair in moving for a new Constitutional Convention." 

' James Wilson, then in Congress, although he was soon dis- 
placed, and afterward returned at the request of Gen. Washington. 




George Bryan 

Half-tone of the only known portrait, a painting in 

possession of Mrs. Charles Hodge Scott, 

Germantown, Pliiladeliiliia 



THE NEW GOVERNMENT 75 

honor to show me them sometimes ; he is a fine fellow, but 
has enemies — created, I sincerely believe, by his superior 
talent. Their malice has hitherto been impotent; but they 
are such industrious, undermining, detracting rascals, that 
I hardly think they will rest till they have got him out, 
and a ready tool in his place. 

"I have been in town ever since May. I was then 
chosen Representative for our county. Immediately on my 
coming to town I fell sick with a very serious bilious colic, 
which had well nigh done for me. I relapsed so frequently 
that I was obliged at last to undergo a very severe course 
of physic, which confined me for two months, and reduced 
me to a perfect skeleton ; but I have every appearance of 
enjoying a more perfect state of health than I have for 
some years. Hardly was I able to walk about when the 
convention met. I was chosen one of them — a pretty 
solon you will say. No matter, we have now sat three 
weeks, and agreed upon the fundamental principles of our 
Government. They are somewhat singular, however. The 
most of us have not had our judgment warped in favor of 
any other, and not a sixth part of us ever read a word on 
the subject. We are only to have one Legislative branch, 
viz: the Assembly, who are to be chosen annually, and a 
rotation to take place every three years. Instead of having 
a Legislative Council, it seems we are to have a convention 
every three, five or seven years (it is not yet settled which), 
who are to inquire into and supply defects, deviations or 
abuses in the Constitution. In what manner the executive 
and judicial are to be chosen I can not yet say, as we only 
settled the other points last meeting. I was in a small 
minority.^ I believe we might have at least prevented our- 
selves from being ridiculous in the eyes of the world were 
it not for a few enthusiastic members who are totally un- 
acquainted with the principles of government. It is not 
only that their notions are original, but they would go to 
the devil for popularity, and in order to acquire it, they 
have embraced leveling principles, which you know is a fine 
method of succeeding. Don't, therefore, be surprised if in 

^ The editor of "The St. Clair Papers," who evidently had 
access to letters not included in his published list, says that Colonel 
Smith especially opposed the single branch feature and the restric- 
tion on the executive. 



76 



THOMAS SMITH 



the next letter I write to you, I should inform you that 
we had passed an Agrarian Law. 

"With regard to anything in the civil line that may 
concern you, I hardly think the convention will do any- 
thing, but it must rest over until the new government is 
formed and the supreme executive appointed. Should 
anything of the kind come upon the carpet while I am 
present, I hope you will not be overlooked. I am in hopes 
a temporary line between us and Virginia will be soon 
settled by the two conventions. I am one of a committee 
to confer with their delegates on the subject. They are 
authorized by this convention, and made the proposal — 
the bearer will inform you what line they proposed. 

"Mrs. St. Clair came soon to Bedford after I went up, 
and before you went away. You know there is nothing 
coming in from the office; however, the bearer will men- 
tion that matter to you. I really wish to see you again. 
I have some reason to hope that you will soon be ad- 
vanced to a higher rank."^ 

The real political forces which were forming this con- 
stitution were not all in the convention itself, nor, indeed, 
was the most powerful part there, as has been said. This 
constitution "was understood to have been principally the 
work of Mr. George Bryan, in conjunction with a Mr. 
Cannon, a schoolmaster," says Alexander Graydon in 
his "Memoirs,"^ "and it was severely reprobated by those 
who thought checks and balances necessary to a legitimate 
distribution of the powers of government. Doctor Frank- 
lin was also implicated in its production ; and either his 
participation in it, or approbation of it, was roundly as- 
serted by its fautors. The Doctor, perhaps a skeptic in 
relation to forms of government, and ever cautious of com- 
mitting himself, had thrown out an equivoque about a 
wagon, with horses, drawing in opposite directions; as, 
upon the adoption of the Federal Constitution he told a 
pleasant story of a self-complacent French lady who al- 
ways found herself in the right. But whether he meant 
by his rustic allusion, to show his approbation of checks 

^ St. Clair was made Brigadier-General by the Congress just a 
week later. 

"'Memoirs of His Own Time," etc., second edition, edited by 
John Stockton Littell, p. 285, 1846. 



THE NEW GOVERNMENT 77 

or otherwise, is an enigma that has never been solved; 
nor is it worth the trouble of solution." 

"With respect to Mr. Bryan," he continues in his inter- 
esting, if cynical, tone, "so conspicuous at this era in the 
home department, he was one of those, whose memory 
treasures up small things, with even more care than great 
ones. He was said to be a very diligent reader, and was 
certainly a never weary talker, who, in the discourses he 
held, seldom failed to give evidence of an acquaintance 
with the most minute, recondite, and out-of-the-way facts; 
insomuch, that a bet was once offered, that he could name 
the town-cryer of Bergen-op-Zoom. As Ireland had given 
him birth, he was probably like the bulk of his emigrating 
countrymen, in the antipodes at all points, to whatever 
was English; and a staunch patriot, of course. It was, 
moreover, his passion or his policy, to identify himself with 
the people, in opposition to those, who were termed the 
well-born, a designation conceived in the genuine spirit of 
democracy, and which, as it may be supposed, did yeo- 
man's service to her cause, now dispensing with its use 
from a just deference to its well born advocates from Vir- 
ginia and her dependencies. In other respects Mr. Bryan 
was well enough: let us say, a well meaning man, and even 
one, who, in the main, felt he was acting the patriot: for 
this part, it is well known, is played in very different styles. 
* * * Of his colleague Mr. Canon, it may not be un- 
charitable to presume, that having the little knowledge 
of men, and scholastic predilection for the antique in 
Liberty, which generally falls to the lot of a pedagogue, 
he acted accordingly. '■^' * * These constituted the 
duumvirate, which had the credit of framing the Constitu- 
tion * * * ." 

Of course, Mr. Bryan was not a member of the con- 
vention, but as a political leader of the popular party he 
could of course act through Mr. Cannon (who had made a 
name by his Cassandra letters in the Gazette) and other 
representatives of his party in the convention. Certain 
it is that no one stood for the instrument formed by this 
body so persistently and successfully, for the next fifteen 
years, as did Mr. Bryan, nor was any one as generally 
considered responsible for it as he. The single-branch As- 
sembly, which was not the form believed in by the best 



78 



THOMAS SMITH 



thought of the day, was no doubt a concession to the 
popular reg-ard for the old Assembly, which had stood so 
long as the bulwark of their liberties.^ 

While the committees were at work on the Constitu- 
tion, the Committee on Instructions to the Congressional 
Delegates, of which a majority was composed of those 
added members of the Constitutional Committee, handed 
in a report which was adopted the next afternoon, the 
26th of July. It directed the delegates, among other 
things, to work toward a "perpetual confederation," which 
would at the same time secure to each colony "the perfect 
direction of its own internal pohce." By this time, how- 
ever, in the convention there was but one voice on conti- 
nental affairs; the differences were on the Constitution 
itself. 

On August 22 Colonel Smith wrote his friend. Gen- 
eral St. Clair, more about it, in a letter congratulating 
him on his promotion. ^ "I was favored with yours last 
night by Captain Rippy," the letter reads. "I now know 
by experience, what I always believed, that elevation does 
not make you forget your friends. You will, perhaps, be 
of opinion that I am not that sincere friend you take me 
to be, when I inform you that the intelligence you gave 
me on that head gave me far less pleasure than you sup- 
posed it would; the reason is, I knew it long before, for 
no sooner was you appointed Brigadier-General but our 
worthy friend Wilson communicated the agreeable news 
to me, upon which I wrote to most of our friends to whom 
I knew the news would give pleasure. 

"It is not your elevation alone that I congratulate you 
upon; but I can assure you, from undoubted authority, 
that your military character stands as high with Congress 
as that of any general on the continent, and I flatter my- 
self that you have as good a chance for even a more ele- 
vated rank than that to which you are lately raised. What- 
ever has been said, or whatever may be said to the con- 
trary, I think every man's own heart will tell him that self 
has a considerable share in the direction of all our thoughts 

^ This also was a feature of the theory of one school of govern- 
ment at that time. 

* "The St. Clair Papers," by William Henry Smith, Vol. I, p. 
373. 1882. 



THE NEW GOVERNMENT 79 

and actions. I feel an instance of it upon this occasion, for 
though I do sincerely rejoice at the elevation of a much 
esteemed friend, yet I am not without my fears that I 
shall by that means be deprived of the pleasure which I 
enjoyed in the company of that friend." 

Then he takes up the work of the convention. "I feel 
the truth of your sentiments with regard to the Constitu- 
tion that we are about framing," he continues. "In sev- 
eral sects of religionists in the different ages of the world, 
and in some even now, inspiration was supposed to have a 
considerable share in the direction of their actions, and 
they very gravely supposed themselves gifted with it.^ I 
believe we shall have the honor of first introducing the 
same doctrine into modern politics. A motion was made, 
without a blush, by a member, that whatever might require 
the consideration of the House might be printed before 
any resolve was passed upon it, for the use of members, 
as several of them could read print better than writing. 
Our principle seems to be this: that any man, even the 
most illiterate, is as capable of any office as a person who 
has had the benefit of education; that education perverts 
the understanding, eradicates common honesty, and has 
been productive of all the evils that have happened in the 
world. In order that inspiration may be our only guide, 
every person who is to be chosen into any office that was 
formerly supposed to require some degree of human 
knowledge and experience to enable the person to execute 
it with justice — every such person, I say — is to be turned 
out before he can possibly acquire any experience — e. g. 
in the form of government now debating in the House. 
The committee have brought in one article, that the 
justices of the peace shall be chosen by the people in the 
respective districts wherein they reside; turned out every 
seven years and a new set chosen in the same manner. 
We are not come to it yet, but by the complexion of the 
House I have reason to think it will pass. We are de- 
termined not to pay the least regard to the former Consti- 
tution of this Province, but to reject everything therein 
that may be proposed, merely because it was part of the 
former Constitution. We are resolved to clear every part 

^ Colonel Smith was himself an Episcopalian. 



8o THOMAS SMITH 

of the old rubbish out of the way and begin upon a clean 
foundation. You know that experimental philosophy was 
in great repute fifty years ago, and we have a mind to try 
how the same principle will succeed in politics. You 
learned fellows who have warped your understandings by 
poring over musty old books, will perhaps laugh at us; 
but, know ye, that we despise you. 

"The situation of this country," he adds, "as well as 
that of blind Britain, must give great anxiety to every 
person who is not callous to the feelings of humanity. 
They seem to have been in the same situation for some 
time past with regard to their intellects as the builders 
of Babel were in respect of their [ ].^ God knows how 
the destructive dispute will end. I think the ruin of Britain 
is inevitable, and her existence as a powerful Kingdom 
is near at an end. We will undoubtedly feel sorely the 
effects of the dispute; but I can not help being of opinion 
that, according to the course of human affairs, we must, 
in the end, prevail." 

"As for myself," he adds in closing, "I have the honor 
to serve the public and receive nothing for it; but that it 
puts it out of my power to serve myself by going to the 
woods, for, as there is at present, and like to be through 
our great wisdom, a suspension of all law for a consider- 
able time, nothing is to be done in that channel, and from 
the temper of the times no person has any security, let 
his conduct have been what it will, that he will not be 
superseded by any being of a day." 

On September 2 Colonel George Ross, the Vice-Presi- 
dent of the convention, and Colonel Thomas Smith were 
made a committee to form an ordinance enabling Justices 
of the Peace to compel debtors to give security to cred- 
itors, and on the following day Colonel Smith was one of 
those appointed as a Justice for Bedford county. On the 
5th the Committee on Treason reported finally, and its 
ordinance was adopted, and on the 9th it was voted that 
non-Associators pay twenty shillings a month as a species 
of war tax. 

At this point it seems desirable, in order to appreciate 

^ There seems to be no reason why this might not be "theirs," 
although the editor of "The St. Clair Papers" seems to think some 
word missing. 



THE NEW GOVERNMENT 8i 

the difficulties of the situation at Colonel Smith's home, to 
interrupt consideration of the work of the convention and 
glance at the frontier. The Congress had made Jasper 
Yeates, of Lancaster, and others Commissioners of Indian 
Affairs for the Middle District, and they were now at Pitts- 
burg. They found that there was every probability of an 
Indian war; that in the whole vast territory to the west 
and northwest they were considering which side to take, 
and were inclining toward the King. Still more, they 
found that the long-continued friction between the Vir- 
ginia and Pennsylvania settlers about the forks of the 
Ohio had finally led many of them, about the beginning of 
July, 1776, to contemplate the formation of an independent 
State, and to efforts to secure a memorial to the Congress 
for a new State to be recognized, to be known as "the 
Province and Government of Westsylvania." 

"Beginning at the Eastern Branch of the Ohio opposite 
the mouth of the Scioto," says the description of the 
bounds of the proposed government, "& running thence 
in a direct line to the Owasioto Pass, thence to the top of 
the Allegheny Mountain, thence with the top of the said 
Mountain to the Northern Limits of the Purchase made 
from the Indians in 1768, at the Treaty of Fort Stanwix 
aforesaid, thence with the said limits to the Allegheny, or 
Ohio River, and thence down the said River as purchased 
from the said Indians at the aforesaid Treaty of Fort 
Stanwix to the Beginning."^ The memorial further de- 
scribes it as "a Country of at least 240 miles in length from 
the Kittaning to opposite the mouth of the Scioto, 70 or 
80 in Breadth from the Allegheny Mountain to the Ohio, 
rich, fertile & healthy, even beyond credibility & peopled 
by at least 25,000 Families since the year 1768 (a popula- 
tion we believe scarce to be paralleled in the Annals of 
any Country)." 

They even went so far as to call a convention to organ- 
ize a new government. "Whereas the Situation of this coun- 
try," reads the advertisement, "hath been hitherto very un- 
happy for proper Regulations: and whereas there is now 

^ From the copy of "The Memorial of the Inhabitants of the 
Country, West of the Allegheny Mountains" to the Congress, 
among the Yeates Papers, 1744-1776, at the Pennsylvania Histori- 
cal Society. These copies are in Mr. Yeates' own hand. 



82 THOMAS SMITH 

an opportunity of Regrilation offered by the Resolve of 
the Honble., the Continental Congress of the 15" Day of 
May last: and whereas there are now on Foot two dif- 
ferent modes for obtaining the said necessary Regulations; 
the first mode is a joint petition of the Inhabitants of this 
Country to the said Congress praying their Interposition 
in settling the Disputes which have occasioned our Un- 
happiness, & the Second Mode is by immediately coloniz- 
ing ourselves by our own Authority, & finding our Dele- 
gates to the said Congress to represent us as the four- 
teenth link in the American chain: It is therefore sin- 
cerely recommended that they assemble at suitable places 
in each district on August 9 and choose one of these 
modes." This, however, was met by a memorial of the 
Virginia committee of West Augusta county to their 
Lower House of Assembly warning them against the pro- 
gram. This it was, undoubtedly, which brought the Vir- 
ginians so quickly to the convention as soon as it was 
organized, and also which prompted that body's hearty 
response. 

This action, however, came to naught, and was but 
a symptom of the alarming attitude of the Indians, news 
of which was sent to the convention and acted upon on 
September 10. That body made Colonel Thomas Smith, 
Colonel Potter and Major James Smith a committee to 
confer with the Congressional Committee on Indian Af- 
fairs as to what should be done for the frontier, in addition 
to the former action setting aside the Westmoreland and 
certain Bedford troops for that service. 

On the 13th of September the creditors' ordinance was 
reported and passed, making imprisonment a possibility 
when security was refused. On the 14th the Virginia 
Boundary Committee reported that overtures were re- 
ceived to accept a temporary boundary somewhat like the 
one proposed by Lord Dunmore, and that the conven- 
tion's committee had brought a counter-proposal for a 
temporary line to be surveyed as near as possible to the 
true line, which the Virginia delegates had not the power 
to accept. Then followed the report of Mr. Cannon's 
committee, to which the non-Associators' tax bill had 
been assigned, after recall from the other committee. Mr. 
Cannon and his fellow-members made a more drastic 



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THE NEW GOVERNMENT 83 

measure. On the same day Colonel George Ross, sec- 
onded by Mr. Clymer, tried to get a reconsideration of 
the one-branch feature of the Legislature, but in vain. Day 
by day the work in Committee of the Whole was devoted 
to the new Constitution, and on the 23d, when it became 
evident that the work was nearly done, a committee was 
chosen, composed of Colonel Matlack, Mr. Jacobs and 
Colonel Thomas Smith, to draw up an ordinance carrying 
out elections under the proposed Constitution. 

The drastic measures of Mr. Cannon's committee soon 
stirred the supposedly defunct Assembly to action, al- 
though it was apparently impossible to secure a quorum. 
On the 24th twenty-nine met — there seems to be no record 
where — and attempted to vote the budget which car- 
ried ii,ooo for the late Governor John Penn. Many of 
the old members, who had declared the Province a free 
State, took care to attend, and among them was Colonel 
Thomas Smith. He and eleven others voted against the 
budget, but it was carried by a majority of four, and the 
Assembly broke up on the 26th, after considering the 
budget in detail and passing a resolution against the 
power of the convention to tax or to grant such power of 
imprisonment to Justices as appeared in the drastic meas- 
ure recently passed. This was only a resolution passed 
"by a majority of those present," however. 

The convention was supreme, and Mr. Cannon's asso- 
ciates in control. On the 25th, to Mr. Cannon, Mr. Jacobs 
and Mr. Rittenhouse was assigned the preparation of the 
preamble and forms of oaths of allegiance and office. On 
the following day the Elections Committee reported, 
among other things, that the elections should be held on 
November 5, and that each elector should take an oath 
not to "directly or indirectly do any act or thing preju- 
dicial or injurious to the Constitution or government 
thereof, as established by the convention," and their ordi- 
nance was adopted. The Constitution was to be ordained 
— not voted upon. Mr. Cannon, Mr. Rittenhouse and 
Colonel Matlack were to write the announcement to the 
public, and the convention rose on the 28th of September.^ 

^ The old Constitution of 1776 is still preserved in the office 
of the Secretary of the Commonwealth at Harrisburg. It gives the 
impression of having been a long roll, afterward cut into thirteen 



84 THOMAS SMITH 

October developed great and vigorously expressed 
variety of opinions on the new instrument. Colonel Smith 
objected to it strongly, but attempted to take a wise 
course, thinking it better to accept the inevitable for a 
time, until a new convention could be secured. Some, 
however, counselled resistance to the election, even among 
those who were strong supporters of the revolution. A 
meeting, at which Colonel John Bayard was chairman, 
was held in the State House yard on the 21st and 226. of 
October, protesting against the work of the convention.^ 
It was resolved, among other things, that the "conven- 
tion assumed and exercised powers with which they were 
not entrusted by the people;" that the Constitution "un- 
necessarily deviates from all resemblance to the former 
government of this State," when they were just to remove 
Kingly authority; that it was different "m many important 
articles from Every government that has lately been estab- 
lished in America on the authority of the people — from the 
sentiments of the Honourable the Continental Congress 
respecting government — and from those of the most dis- 
tinguished authors, who have deliberately considered that 
subject." They attributed the alarm of a great many 
people and the resistance of many more to the "strange 
innovations" of the new instrument, and advised against 
election under it, together with an immediate calling of a 
new convention. 

An interesting foot-note commentary explains that the 
Constitution differs "from others lately formed in these 
particulars: i^*- It establishes only a single legislative body. 
2diy. It renders the judicial dependent on that single legis- 
lative body, who may remove any judge from his office, 
without trial, for anything they please to call 'misbehavior.' 
^diy. i^ renders the executive dependent on that single legis- 
lative body; by whom alone the executive officers are to be 
paid for their services, — and by whom, from the great dis- 
proportion between the members of the Assembly and 
Council, the President and Vice-President must always be 

quarto sheets. Franklin signed each sheet at the bottom, and at 
the close are all the signatures in full, each county signing in 
groups, with twelve seals. Views of the first page and that on 
which Colonel Smith's signature appears are given herewith. 
^Pennsylvania Gazette, October 23, 1776. 



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Last Page of The Pennsylvania Constitution of 1776, 
Signatures 
Half-tone of the original among the 
Archives at Harrisburg 



THE NEW GOVERNMENT 85 

annually chosen, — besides, that every officer, executive or 
judicial, may be impeached ^3; the Assembly, before six of 
the GDuncil thus dependent on the Assembly, and be tried 
and condemned. 4thiy. It erects no court of appeals, more 
necessary here than in some other States, as our Supreme 
Court may try causes in the first instance, and finally de- 
termine them, so that there is no mode settled for correct- 
ing their errors." The writer quotes Montesquieu on the 
separation of legislative, executive and judicial functions, 
and closes with a prediction that the power vested in the 
Council of Censors, and the convention that may be called 
by them, "will occasion convulsions in the State." These 
extracts are sufficient to show the general tenor of opposi- 
tion, an opposition that was to be as long continued as the 
defense and until its efforts were crowned with success. 

The defenders of the new Constitution were equally 
active. The defense by Professor Cannon's committee has, 
unfortunately, not been found. One who writes anony- 
mously, as was the prevailing custom, says, among other 
things, in reply to "Brutus," who especially attacks the oath 
of electors, "The constitution is now formed and the Con- 
vention dissolved, the last attempt to defeat all our meas- 
ures is to prevent an election. Other Conventions either 
resolved themselves into Assemblies and undertook to ap- 
point officers of State — though not appointed for that pur- 
pose; or sat until it took place. — Our Convention trusting 
to the virtue of their countrymen, on finishing their work 
dissolved themselves. — Our enemies, if they could prevent 
an election under the new form, would gain their point, as 
all things must in consequence run into immediate con- 
fusion. — Brutus appeals to the people and hopes to prevail 
on them by misrepresentation and artifice to effect this, by 
making them believe that an oath which can prevent none 
but our enemies from voting, is arbitrary and criminal."^ 

On October 30, "Consideration," another defender, 
writes, inter alia, that those who opposed the new frame, 
when they could find nothing worse, concluded it must "be 
a vile thing, because a certain Schoolmaster had a principal 
hand in forming it," but he reminds them that Mr. Cannon 
is "a learned, sensible and disinterested Patriot," and that 

^Pennsylvania Journal, October 9, 1776. 



86 THOMAS SMITH 

they "quite forget Dr. Franklin and David Rittenhouse, 
A.M., were in the Convention," although they do "remem- 
ber Colonel Matlack, but only to inform the true proprietors 
of dominion (the rich) that the fellow is an upstart and 
does not keep a chariot." He closes by remarking : " 'Tis 
time enough to have it amended when experience and cool 
reflection on all the arguments for and against it can ripen 
your judgments for so weighty an affair."^ 

November brought the Assembly election, and when 
they met, in the same old Supreme Court room used by the 
convention, on November 28, Colonel Thomas Smith, 
Dougherty, Elliot, Espy, Woods and Rhoads, the old-time 
leaders in Bedford county, were returned. John Dickinson, 
Robert Morris, George Clymer and John Bayard were 
among those from the city and county of Philadelphia, 
while the rest of the returns showed the popular party 
still in control, but a considerable number, also, of those 
opposed to the Constitution. Scarcely more than a 
quorum appeared, and even by December 3 there was 
none, so that about all they did besides organization 
was to push forward the non-Associators' tax bill. Was 
this Assembly to be killed by no quorum, as the old 
one had been? Colonel Smith and many others who 
believed as he did were evidently not there. Almost no 
business was done even when a quorum was present. It is 
true that there was great alarm over the approach of the 
contending armies. The Congress became so alarmed by 
the 1 2th of December that they sent Colonel Wilson across 
the hall to the Assembly and to the Council of Safety up 
stairs, to say that they proposed removing to Baltimore, to 
meet there on the 20th of December. 

A month before this, namely, on November 11, the 
Council of Safety of Pennsylvania had received intelligence 
of the forward movement of General Howe toward Phila- 
delphia, and efforts were at once made to prepare for de- 
fense. The Associators' militia were placed in readiness, 
and this required many of those elected to the Assembly 
to act in their various military capacities. Colonel Thomas 
Smith, while he was in the convention in July, had been 
succeeded as Colonel of the Second Battalion of Bedford 

^Pennsylvania Gazette, October 30, 1776. 



THE NEW GOVERNMEN 87 

by Colonel George Woods. Colonel Smith served in various 
capacities in the preparation of the troops and acted at times 
among the field officers as Lieutenant-Colonel, as did Woods, 
Piper and McAlevy.^ The continual reorganization of the 
frontier service, because it was partly for the frontier and 
partly for the State and continental troops, made frequent 
changes necessary, the records of which are not complete. 

But, to return to the doings of the Assembly, the alarm 
of the Congress extended to them, for "from the 14th day 
of December, 1776, until the 13th day of January, 1777, a 
quorum of the members did not appear in the House, oc- 
casioned by a number of the members being officers in the 
militia, who were under obligation to attend in the army, 
and a number of the members returned home to bring out 
the militia of their respective counties (the enemy ap- 
proaching towards this city), and the committee appointed 
to bring the public treasury back to this place from Balti- 
more: although a number met and adjourned from day to 
day."^ The Council of Safety — for no Supreme Executive 
Council had met yet — was the executive government of 
Pennsylvania, Thomas Wharton, Jr., being president of this 
Council and David Rittenhouse, vice-president. Among 
those active in it at this time were Bayard, Matlack, Cannon, 
Biddle and others. 

With the opening of 1777, however, the Assembly met 
and did more work than before. They made David Ritten- 
house State Treasurer on January 14. On February 5 
they elected Robert Morris, Benjamin Franklin, William 
Moore, Jonathan Bayard Smith and Daniel Roberdeau 
delegates to the Congress, and the following day recorded, 
with some irony, Robert Morris' acceptance of the post — 
an explanation of which will presently appear. On March 
4 the Supreme Executive Council first met, and at once 
entered the Assembly in joint session to elect a President 
and Vice-President. Thomas Wharton, Jr., and George 
Bryan were chosen to the respective offices, and they were 
proclaimed at the court house the next day, March 5. 
With this event the government of Pennsylvania, under 
the new Constitution, was an accomplished fact. The pop- 



* Pennsylvania Archives, Second Series, Vol. XIV, p. 644. 
' Minutes of Assembly of latter date. 



THOMAS SMITH 



ular party were now in full control, and their aggressive- 
ness and vigor, which soon became manifest, were due, in 
very large measure, to the new Vice-President, Hon. George 
Bryan. 



VII 

Opposition to the Radical Party and the Consti- 
tution OF 1776 

1777 

On the very morning of March 5, when the procla- 
mation of President Wharton's and Vice-President Bryan's 
accession to office occurred at the court house, the As- 
sembly received a petition from Attorney Robert Gal- 
braith, of Bedford, asking- that he be given the offices of 
Recorder and Register for that county, held by Colonel 
Thomas Smith. This was the first note of warning that 
Colonel Smith's opposition to the Constitution was to be 
punished. It was followed on March 17 by the appearance 
of Colonel Smith, Colonel Woods and Mr. Rhoads, members 
of Assembly for Bedford, with a remonstrance. This was 
met by a counter-petition from the Constitutionalists, or 
Bryan followers, on the 20th, asking for a new election 
of representatives from that county. The anti-Constitu- 
tionalists were so formidable in Bedford county, however, 
that the Assembly at once did something probably never 
done before or since, ordered that "seventy copies of the 
Constitution of this Commonwealth be procured, sent up 
and dispersed among the inhabitants of the county of 
Bedford," as a species of missionary literature, evidently 
thinking that the opposition arose from ignorance of its 
piovisions, when, in fact, it arose from a very thorough 
knowledge of that instrument.^ " But to settle the matter 
fairly," wrote a pungent defender of the Constitution 
under the signature " Demophilus," against one " Phocion," 
"and in good earnest to determine whether the majority 
of the people are dissatisfied with the Constitution on 

^ Although Bedford was the only county singled out in this 
way, later copies in both English and German were sent to all 
counties. Journals of Assembly, Vol. I, p. 145. 

89 



go THOMAS SMITH 

reasonable grounds, take the Constitution, paragraph by 
paragraph, and expose its defects throughout, and. at the ex- 
pense of your patriotic party, serve every district in the 
State with a printed copy of the work, and we, the con- 
tents with the present Constitution, will, at our expense, 
lay a vindicatory appeal before the public, and then, after 
a sufficient time is given to have a judgment on the real 
merits of the little book, if you can obtain a majority of 
the Freemen of the State of Pennsylvania to petition for 
the calling of a new Convention to alter the Constitution, 
I will with heart and hand promote the reformation, to 
the utmost of my power:" and if they will not do it he 
purposes to consider them "enemies" and "pests of so- 
ciety."^ 

The opposition was by no means confined to Bedford, 
although that county seemed to be the object of more 
solicitude than any other, possibly because the strongest 
element there in character and influence were pretty 
thoroughly united against it. "The Difference of senti- 
ment which prevails in Cumberland county about the Con- 
stitution," wrote Ephraim Blaine to President Wharton 
about this time, "and the 111 Judg'd appointment of part 
of the Sub Lieutenants, are my Principle reasons for not 
Accepting for the present, the Commission your Honor 
and the Council were pleased to offer me of the Lieuten- 
ancy." There were others of what proved to be equally 
"111 Judg'd" appointments, and one of these was the se- 
lection by the Supreme Executive Council on March 21, 
of Attorney Robert Galbraith, then of York, as Prothon- 
otary of Bedford county. It is notable, too, that in the 
appointment of a successor to St. Clair in Westmoreland 
it was carefully agreed that the incumbent should resign 
the ofifice to him if he returned.^ This choice of Galbraith 
was resented by the strongest element for a good many 
reasons, so that there was no business done in the office of 
Recorder for over a year, and Colonel Smith was justified 
by the people in refusing to give up the records.' 

* Pennsylvania Gazette, March 19, 1777. 

' Colonial Records, Vol. XI, p. 187. 

' Hon. William P. Schell, in his notes on Bedford county, says 
there was "a period extending from the 9th of October, 1776, to 
the 22d of April, 1778, during which no business was done in the 
office." 



OPPOSITION TO THE CONSTITUTION 91 

He was, however, not spending any time in this matter. 
The events following the successes of General Washing- 
ton at Trenton and Princeton, in which General St. Clair 
won a Major-Generalship, during the past winter, and 
the approach of the enemy, made it necessary to draw 
heavily on Pennsylvania for supplies. In February, Gen- 
eral St. Clair writes James Wilson from the camp at Mor- 
ristown, N. J., that "Tom Smith is here." It is probable 
that this visit was in connection with the Quartermaster 
service, as Colonel Smith became connected with the de- 
partment during the year, and was stationed at Bedford as 
Assistant Deputy Quartermaster-General under Deputy 
Quartermaster-General John Davis at Carlisle.^ 

"Pennsylvania is in the greatest confusion," wrote 
James Wilson to St. Clair on March 2j, after he had re- 
sumed his seat in Congress. "Perhaps order may, at last, 
arise from it. The very critical situation of public afifairs 
is of much advantage to the Assembly and their friends,"" 
"The disaffection in Pennsylvania," wrote General Wash- 
ington, "which I fear is much beyond anything you have 
conceived, and the depression of the people of this State 
[New Jersey], render a strong support necessary to pre- 
vent a systematical submission; besides the loss of PhilaT 
delphia would prove a very great injury, as we draw from 
thence almost all our supplies." "As to the politics of 
Pennsylvania," wrote Wilson to St. Clair in July, "they 
are not in the situation I could wish. If a regular system 
was formed between General Howe and the friends of our 
Constitution, his motions could not have been better 



^ The date of his appointment is not known. The fact is known 
from numerous letters, especially in the collection of C. P. Hum- 
rich, Esq., of Carlisle. In the Dreer Collection, at the Pennsylvania 
Historical Society, among letters of the members of the Continen- 
tal Congress, is a letter of Colonel Smith to Comptroller-General 
Nicholson, of Pennsylvania, from Carlisle, on August 9, 1783, re- 
garding Colonel Smith's payment on a certain quantity of guns for 
the militia of Bedford county. The part of especial pertinence is as 
follows: "Some Time after I returned from the Camp in Jersey in 
March, I777, I received an additional List of Guns which had been 
appraised before we went out; but the appraisement not having 
been sent down in proper time, I did not receive the Money till 
some time after that for the rest had been received." Apparently 
he was in the Quartermaster service during the most of the 
Revolution. 

^"The St. Clair Papers," Vol. I, p. 392. 



g2 THOMAS SMITH 

timed for them than they have been in two different in- 
stances. When an opposition has been twice set on foot, 
and has twice proceeded so far as to become formidable, 
he has twice, by his marches toward Delaware, procured 
a cessation. The Assembly have twice taken advantage 
of it to promote their own purposes, though those in the 
opposition generously, and like true patriots, have sus- 
pended it, while the approach of the enemy were dreaded. 
The Assembly, just before their adjournment, and just 
after their laudable instance of conduct was exhibited, 
have branded themselves in a public address to the people, 
with carrying on their opposition in a manner improper 
under any government. They have agreed, however, at 
last, to take the sentiments of the people with regard to a 
convention."^ 

By autumn of 1777 the British were attempting to 
close in on Philadelphia. During the first half of Septem- 
ber the Assembly could get no quorum. The British had 
gone around to Chesapeake Bay, and in their approach to 
Philadelphia had fought the battle of Brandywine. On 
the 14th James Wilson and George Clymer were super- 
seded in Congress by Joseph Reed and others. On the 
18th the Assembly adjourned to meet at Lancaster on the 
25th, and the Congress also removed there, leaving the 
State House deserted as a capital for the first time since 
its erection, over forty years before. The times were dark, 
and but few of the ablest leaders escaped an outcry of 
some degree against them. 

On the 19th General St. Clair, at Reading Furnace, 
wrote a letter to Colonel Smith at Bedford. "I received 
your kind letter of the 7th and should without hesitation 
have set off alone for Bedford, but that the General [Wash- 
ington] requested I would stay a few Days with him, as 
that Time he thought would probably bring Matters to a 
decisive Issue. I could not refuse, tho' my Mind is in so 
disturbed a State that I can be of very little service, and 
an unfortunate move we made two days ago (by whose 

^"The St. Clair Papers," Vol. I, p. 417. This was a very- 
curious plan, announced by the Assembly on June 17, by which 
at the next election each electoral division should choose a com- 
rnissioner, who should visit each freeman of his district, collect 
his ballot, "put it into a box or bag," and the results be taken on 
November 10. — Journals of Assembly, Vol. I, p. 146. 



OPPOSITION TO THE CONSTITUTION 93 

Advice I know not) has lost us the opportunity, the Gen- 
eral sought for, and will probably occasion the City of 
Philadelphia falling into the Enemies' hands without a 
Blow — it depends entirely on our coming up with them 
to-day and we are now in March for that Purpose, but 
they have got so much Ground of us that I doubt they 
will be over Schuylkill at the Swedes Ford before we can 
possibly overtake them, should that be the case I will set 
cut to-morrow — in the meantime I have sent my servant 
up, perhaps Mrs. St. Clair may take some Assistance from 
him — Danny I have sent to Carlisle. Adieu. I have not 
words for the Sense I have of your Friendship nor are 
they necessary."^ 

The results are well known. Philadelphia was cap- 
tured. The Congress met at Lancaster on the 27th of 
September and adjourned to meet at York, or "York- 
Town," as they called it, on the 30th. The State and Con- 
gressional capitals were moving toward Colonel Smith, and 
Carlisle and Bedford became important seats for the 
colonial supplies, as well as those of the State. The 
Congress at York were much occupied on "Articles of 
Confederation" for the defeated but not discouraged 
Americans. It was October 6 before the Assembly se- 
cured a quorum at Lancaster, and they adjourned on the 
13th, the new Assembly to meet there on the 27th, if 
Philadelphia should still be in the enemy's hands. They 
did not, in fact, get a quorum before November 20. The 
Supreme Executive Council, however, were in session at 
Lancaster, and received a note written on the 31st of Octo- 
ber, from the Bedford Prothonotary, Robert Galbraith, 
hving at York, telling of his difficulties m getting started. 

"I have been at Bedford and opened the courts with- 
out any opposition. The Sherifif held the election, and 
though but a small one, yet I hope it will answer a good 
purpose. Mr. Smith still refuses to deliver up the 
Records, as appears by the affidavits sent you by Mr. John 
Morris, Clerk of the Assembly. Fve sent by Mr. Morris 
the Nomination of Bedford Justices of Persons for Clerk 
of the Peace, which I expect the Council will take note 



^ The De Renne Papers. This letter is now published for the 
first time. 



g4 THOMAS SMITH 

of, and send up the commission per first opportunity. 
* * * Mr. Woods has taken the Oath of Allegiance, 
and wonders why himself and the other two Gentlemen 
recommended with him, are not Commissioned; he says 
he is now determined to support the Constitution, and 
most undoubtedly he can do a great deal of good or ill 
in this county at the present Time. If the Council thought 
proper to send for Mr. Smith, and dispose of him in some 
other way than confining him in Bedford, it might answer 
a better purpose, for I am apprehensive he might be 
rescued here, and I am of opinion if he were brought be- 
fore the Council he would agree to deliver them up ; but 
this I leave to the wisdom and prudence of the Council. 

"The generality of the People in Bedford County," he 
continues, "are well disposed to the Constitution, and a 
little Time, I am persuaded, will put matters upon a good 
footing. * * * With compliments to Mr. Bryan and 
the other Gentlemen of the Council." 

On November 17 the Supreme Executive Council, 
President Wharton, Vice-President Bryan, and four mem- 
bers, curtly ordered "That the said Tliomas Smith, 
Esq'r, be Arrested and Confined in the Goal of the said 
County of Bedford, according to Law."^ Mr. Bryan made 
out the warrant at once, which states that Colonel Smith 
had "neglected to comply with the demand for the 
records" and that he should be kept locked up in jail, but 
only until the records were secured.^ 

Ten days later, November 27, Colonel Smith joined 
Colonel George Woods in a letter to President Wharton 
at Lancaster, describing the Indian aggressions about 
them. "The present situation of this County," the com- 
munication reads, "is so truly deplorable that we should 
be inexcusable if we delayed a moment in acquainting you 
with it, an Indian War is now raging around us in its 
utmost fury. Before you went down they had killed one 
man at Stony Creek, since that time they have killed five 
on the Mountain, over against the heads of Dunning's 
Creek, killed or taken three at the three springs, wounded 
one and kill'd some children by Frankstown, and had they 



* Colonial Records, Vol. XI, p. 373. 

* Pennsylvania Archives, Vol. VI, p. 12. 



OPPOSITION TO THE CONSTITUTION 95 

not providentially been discovered in the Night, & a party- 
went out and fired on them, they would, in all probability, 
have destroyed a great part of that settlement in a few 
hours. A small party went out into Morrison's Cove 
scouting, and unfortunately divided, the Indians discov- 
ered one division and out of eight killed seven & wounded 
the other. In short, a day hardly passes without our hear- 
ing of some new murder, and if the people continue only 
a week longer to fly as they have done for a week Past, 
Cumberland County will be a frontier. From Morrison's, 
Croyl's & Friends' Coves, Dunning's Creek, & one half 
of the Glades they are fled or forted, and for all the defence 
that can be made here the Indians may do almost what 
they Please. We keep out ranging Parties, in which we 
go out by turns; but all that we can do that way is but 
weak and inefifectual for our defence, because one-half of 
the People are fled, those that remain are too busily em- 
ployed in putting their families and the little of their ef- 
fects that they can save and take into some place of safety, 
so that the whole burden falls upon a few of the Frontier 
Inhabitants. For those who are at a distance from danger 
have not as yet offered us any assistance, we are far from 
blaming the officers of the Militia because they have not 
ordered them out, for if they had they really can be of 
little or no service, not only for the foregoing reasons, 
but also for these, not one Man in ten of them is armed, 
if they were armed you are sensible [that], and take the 
country through, there is not one fourth Man that is fit 
to go against Indians, and it might often happen that in 
a whole class there might not be a single Person who is 
acquainted with the Indians ways or the woods, and if 
there should be a few good Men, and the rest unfit for that 
service, those who are fit to take the Indians in their own 
way could not act with the same resolution and spirit as if 
they were sure of being properly supported by men like 
themselves. The consequence would be that the Indians, 
after gaining an advantage over them, would become much 
more daring and fearless, and drive all before them. A 
small number of select Men would be of more real service 
to guard the frontiers than six times that number of 
People unused to arms or the woods. It is not for us to 
dictate what steps ought to be taken, but some steps ought 



96 



THOMAS SMITH 



to be taken without the loss of an hour. The safety of 
your county, your families, of your Property, will, we are 
convinced, urge you to do everything in your Power to 
put the Frontiers in some state of defence. Suppose there 
were orders given to raise about lOO Rangers, under the 
Command of spirited officers, who were well acquainted 
with the woods and the Indians and could take them in 
their own way. They could be raised instantly, and we 
are informed there are a great number of Rifles lying in 
Carlisle, useless, altho' all the back Country is suffering 
for the want of arms. It was a fatal step that was taken 
last winter in leaving so many guns when the Militia came 
from Camp, about this place especially, and all the country 
near it, they are remarkably distressed for the want of 
Guns, for when the Men were raised for the army you 
know how we procured every Gun that we could for their 
use, the country reflect hard on us now for our assiduity 
on those occasions, as it now deprives them of the means 
of defence. But this is not the only instance in which we 
bear reflections which are not deserved. The safety of 
our country then loudly called on us to send all the arms 
to the Camp that could be procured, and it now as loudly 
calls on us to entreat that we may be allowed some as soon 
as possible. As also some ammunition, as that which was 
intrusted to our care is now almost delivered out to the 
officers who are fortifying, and what remains of it is not 
fit for rifles. We need not repeat our entreaties that what- 
ever is done may be done as soon as possible, as a days 
delay may be the destruction of hundreds."^ In December 
money and arms were voted by the Supreme Executive 
Council at Lancaster for the use of the frontier militia. 

Meanwhile Mr. Galbraith was a little slow about ar- 
resting Colonel Smith, for it was the 6th of February, 
1778, before he reports his success. "These will serve to 
inform your Excellency," he says, "that upon my going 
to Bedford, T put the Warrant I obtained from the Council 
into the Hands of the Sheriff, who took Mr. Smith into 
Custody, upon which he delivered up the Records, Seals, 
&c. Notwithstanding the Indian disturbances in the 
County, we had a pretty smart Court. The Grand Jury 

^ Pennsylvania Archives, Vol. VI, p. 39. 



OPPOSITION TO THE CONSTITUTION 97 

found several bills, and a great many who were for some 
time past backward in taking the Oath came into Court 
and took it, so that I have the pleasure to inform you 
matters wear a good aspect now in Bedford, with regard 
to the Constitution."^ 

Three months later the Council received a letter from 
Lieutenant Hugh Davidson, asking to be relieved from 
the post of Sub-Lieutenant, as conditions in Bedford made 
his efforts useless. "I cannot but suggest that our Board 
has been too weak to have influence among the People in 
the peculiar Circumstances of the County, this may be 
owing to the appointment of some Persons to it who were 
utterly unacquainted with Public Business, little known in 
the County, and not of sufficient public Reputation & In- 
fluence to stand against that Resentment of the People 
raised even by the due Exercise of their office, (for I 
apprehend that officers ought to have personal influence 
as well as legal Power or else Government will be weak) — 
I am prone to think that one occasion of this may have 
arisen from hence, that the Gentlemen in & near Bedford, 
who are confessedly best acquainted with public Business 
& capable of managing the affairs of the County, have on 
account of their former opposition to the Constitution of 
the State, and perhaps on account of some wrong Repre- 
sentations concerning them, been kept out of Places of 
Trust, even when our situation required all the assistance 
they could give. I think it not strange that it should be 
so, as I understand they have been represented as un- 
friendly to the cause of Liberty & Enemies to the State. 
But as I am fully persuaded that such representations are 
false & malicious, & that however they did at first oppose 
the Constitution, & still may desire amendments made to 
it, in a proper way, they are, not only from the urgent 
necessity of our circumstances, but from Inclination, dis- 
posed to avoid any opposition & support and carry on the 
legal authority in the County, I would therefore pray that 
for the good of the County, the strengthening of Govern- 
ment in it, and the sake of Harmony in this Part of the 
Commonwealth, it may please you to disallow of any Rep- 
resentations or objections against their acting in any Places 

^ Pennsylvania Archives, Vol. VI, p. 238. 



^8 THOMAS SMITH 

to which they may be thought fit to be appointed, resting 
assured that such Representations are not only a great 
injury to them, but to the County, which at this time, so 
much needs their help."^ 

Meanwhile a guerrilla warfare was constantly kept up 
in the western mountains by Indians and British sym- 
pathizers. "I have reason to believe," wrote Colonel John 
Piper of the First Battalion, writing on the same date, 
"that not less than one third the men in our County are 
actually fled, and the rest who remain are Constantly on 
their Watch Tower, and in daily expectation of an atack 
from Indians or torys, who seems at Present verey numeras 
and dayly Encreasing."^ 

On the following day. May i6, Prothonotary Galbraith, 
in contrast, sends to President Wharton, at Lancaster, a 
more roseate account. "The Courts at Bedford, Carlisle 
and York, are held with great regularity and propriety, 
and more business done in the sessions in a week than 
used formerly to be done under the old Constitution." 
President Wharton no doubt saw how a Constitution could 
effect the amount of business done in a week in a local 
court. "It is with pleasure," he continues in the same 
hopeful strain, "that I acquaint you that a reconciliation 
is efifected in Bedford County, between the Inhabitants, 
who for some time past were opposed to each other with 
regard to the Constitution and political sentiments. The 
matter originated between Mr. Smith and myself, and our 
endeavors with each Party had the desired effect. Mr. 
Woods, Mr. Smith & Mr. Espy, all applied at the Court 
for admission as attornies, and were by the Court ad- 
mitted accordingly; previous to which they had taken the 
oath of allegiance, and gave assurance of their sincere in- 
tentions of burying all past disputes in oblivion, and their 
hearty and sincere endeavors to assist government and its 
Laws and Officers to the utmost of their power. The 
Bench and Bar, as usual, Dined together two days of the 

^ Pennsylvania Archives, Vol. VI, p. 504. The letter is dated 
May 15, 1778. It is interesting to note that this same day the 
Congress released John Penn and Benj. Chew from parole and 
allowed them to return to Pennsylvania, and that Dr. John Conolly 
was in prison at this time. 

* Ibid., p. 506. 



OPPOSITION TO THE CONSTITUTION 99 

Court Week, and transacted business with great unanim- 
ity. I had several reasons for joining with them, (for I 
would inform, the application came from Mr. Smith to 
me) first, because a returning penitent ought to be ad- 
mitted, and because they had it in their power to do a 
great deal of good or harm; they were old settlers, ac- 
quainted with business, still had the confidence of a 
number capable of giving uneasiness and trouble, not- 
withstanding we had brought them under the Law; 'That 
forced prayers are not good,' is an old maxim, and 'con- 
vince a Man against his will and he'l be of the same opinion 
still,' is another I well remember. The application coming 
from them, has every mark of sincerity ; their getting ad- 
mitted and bearing allegiance voluntarily, &c., is in my 
opinion, not only a sufificient acknowledgment to Bedford 
County, but the State in general. That by their assistance 
and advice their mouths are stopped from finding fault, 
the present officers eased of a great deal of the Burthen 
of publick business, & the Council be no more troubled 
with long Epistles, &c. For had not this been effected at 
last Court, there would've been a number of Replevins 
and other actions commenced against the present officers 
(that whether well or ill founded) would've done more 
harm than good, and to avoid this they say they want 
nothing but friendship, and that Justice may be done them. 
As I look upon myself bound to do everything in my 
power for the good of the Cause in general, and Bedford 
County in particular, I would, at the request of Mr. Smith, 
(for I believe he is almost tired of writing to Council him- 
self) mention the situation of some Townships in Bedford 
County with regard to Magistrates. George Woods, Sam' 
Davidson & George Funk, were elected for Bedford Town, 
and returned some time ago. Whether it would be proper 
to Commission Mr. Woods or not, as he is admitted an 
attorney at Law, I leave to the Council to determine; Mr. 
Davidson has been in the Commission before, and made 
a good Magistrate; George Funk is an honest Man, and 
may please the Germans; William Proctor, Junior, was in 
Commission before, and made a good Magistrate; Wm. 
Tod came to Bedford County to live shortly before I re- 
moved to York County, and therefore cannot say much 
of him from my own knowledge, but as he has been elected 

L.ofC. 



loo THOMAS SMITH 

with Mr. Proctor for Bedford Township, may do very 

well."^ 

The condition in the West was so serious during all the 
spring of 1778 that when the Assembly adjourned, on April 
2, after telling the Congress at York that the United States 
ought to bear the burden of protecting the frontier counties, 
and did not get a quorum again before May 18, Colonel 
Smith wrote to the War Ofhce an account of the situation. 
He recommended the organization of a body of at least 
250 riflemen under one of the Butlers, who were practiced 
Indian fighters. The letter was submitted to General Wash- 
ington by Adjutant-General Pickering on May 19, with 
earnest recommendations which showed the fullest confi- 
dence in and respect for Colonel Smith's judgment. 

General Washington, who had spent the winter at Val- 
ley Forge, was initiating his spring campaign. It became 
evident that the enemy were to leave Philadelphia. Mean- 
while, on the morning of May 23, President Wharton died 
at the capital, Lancaster, and Mr. Bryan became the head of 
the government. Early on the morning of June 18, the 
British left Philadelphia, and Acting-President Bryan took 
measures by which the government of Pennsylvania was 
again established at Philadelphia on June 26. The Con- 
gress at York, which had submitted the Articles of Con- 
federation to the State, got back to the State House, in its 
old quarters, on July 2, and began work on the 7th with 
the Articles ratified by a large number of the States. 

While the summer of 1778, with the successes of Wash- 
ington in New Jersey and the friendship of France, was 
passing, two events were happening of interest to Pennsyl- 
vania's future. One of these was the publicity given to 
General Joseph Reed's reply to a British attempt to bribe 
him; that he "was not worth purchasing, but such as he 
was, the King of Great Britain was not great enough to do 
it" — a reply which gave him a new popularity in Penn- 
sylvania.^ The other event was a species of landslide in 
the general elections of that State, as a result of the new 
purposes of the anti-Constitutionalists to vote more freely 
and support the government, since the radical party had 

^ Pennsylvania Archives, Vol. VI, p. 511. 

■■^ Journals of Congress, Vol. IV, p. 329, and General Reed's 
own account in the Pennsylvania Gazette of February 24, 1779. 



OPPOSITION TO THE CONSTITUTION loi 

already consented to a means of taking the public senti- 
ment regarding a new convention. The result was that a 
new Assembly was elected of a very different political com- 
plexion from the former one. 

On October 26, members of the new Assembly met, 
but there was no quorum until November 5. They found 
the old chamber rather small, and adjourned to the college 
on Fourth street, until changes could be made. Before 
organization a day was spent in debate as to taking the 
oath prescribed by the Constitution, many fearing that it 
would prevent their freedom in working for a new conven- 
tion. It was finally agreed, on the 6th, however, that the 
oath should be taken and such as desired might annex the 
following "reservation or explanation": "The subscriber 
hereby expressly reserving to himself full liberty to adopt 
and pursue such measures as he may judge necessary for 
collecting the sentiments of the people, on the subject of 
calling a new convention, to revise, alter, amend or confirm 
the said Constitution — and reserving also, full liberty of co- 
operating, as well with his fellow-citizens, in calling the said 
convention, as with the said convention, if called." With 
this modification of the oath the chief sting of the Constitu- 
tion of '76 was removed. This oath it was which produced 
more virulence in the opposition to that Constitution than 
the faults of the instrument itself, for numbers would not 
take it in order to vote, and this, together with the fact 
that many voters were scattered in the army, made the real 
vote under that instrument, heretofore, seem a hollow 
mockery. The previous Assembly, however, by assenting 
to a measure for sounding sentiment for a convention, had, 
in that act, virtually interpreted the oath in this manner. 

When the returns were opened fifty-nine uncontested 
names appeared, and of these forty-one appeared and took 
the oath. Nineteen, or nearly half of those who appeared on 
the 6th, took the qualified oath. These were Robert Morris, 
Thomas Mif^in, Samuel Meredith and George Clymer of 
Philadelphia, all except one, with General Joseph Reed 
absent; two from Philadelphia county; James Dunlap, 
Stephen Duncan and John Allison of Cumberland county; 
Jonathan Potts, Edward Biddle and Mark Bird of Berks; 
one from Northampton, and the solid delegation from Bed- 
ford — the only county which was solidly anti-Constitution- 



I02 THOMAS SMITH 

alist — namely, Henry Rhoads, Bernard Dougherty, Thomas 
Smith, George Woods, Hugh Davidson and John Burd. 
This placed Philadelphia and Bedford as leaders of the 
anti-Constitutionalists, with especially strong men in both 
delegations. Of course the Constitutionalists organized the 
Assembly and elected their old Speaker, John Bayard, of 
Philadelphia county, but the minority was so large that it 
had to be considered. They gained but four more by 
the close of the month, so that they continued to be a 
minority, as the others gained even more. 

Before proceeding farther, note may be made of a clos- 
ing incident in Bedford afifairs. On the 25th of November, 
Prothonotary Robert Galbraith took pains to notify both 
Vice-President Bryan and the Council and also the Assembly 
that he desired to resign his office in favor of David 
Espy. The Assembly promptly recommended Mr. Espy, 
but on the 27th the Council curtly reminded Mr. Galbraith 
that he could not resign in favor of any person whatever; 
they appointed Mr. Espy, however, and the incident 
closed.^ 

Returning to the Assembly — Mr. Smith was placed on 
a modest committee for the first time on November 7 — 
a committee to consider a complaint from Berks county 
about so great use of grain by distilleries. Seven days later 
he was put on another, for continuing a certain act regulat- 
ing public transportation. On the 23d the House had its first 
division on the admission of the Chester county contestants, 
on the question as to whether those taking the oath after 
June I were entitled to vote, and the Constitutionalists 
won by 27 to 21. Five days later a committee of twelve, 
headed by Robert Morris, was appointed to bring in resolves 
relative to taking the sense of the people on the subject of 
calling a new convention. The minority had the chairman 
and three other members, one of these being Thomas Smith. 

This committee reported on the 27th of November — 
three weeks after the organization of the Assembly — in 
favor of an election on the first Tuesday in April, 1779, and 
the meeting of such convention at Lancaster on June i 
following. This body was to consider and decide nine 
separate points: "i. Whether the legislative power of the 

* Pennsylvania Archives, Vol. VII, p. 99. 



OPPOSITION TO THE CONSTITUTION 103 

State shall be vested, as at present, in a single branch? 
2. If the convention should be for a second branch of legisla- 
tion, then, how the same and the executive powers for the 
administration of government shall be constructed? 3. If 
the convention shall determine against a second branch of 
legislation, whether any provision shall be made for the re- 
visal of laws (without any negative) before they receive 
their final sanction? 4. Whether the appointment of justices 
and field-officers of the militia shall be vested in the ex- 
ecutive powers of government? 5. Whether the Council of 
Censors shall be abolished? 6. Whether the President and 
Vice-President may not be eligible into Council, so as to 
be capable of said offices, after the expiration of three years, 
if their conduct shall render them worthy? 7. Whether the 
Judges should not be made more independent by having 
their salaries fixed and certain? 8. Whether agreeable to 
the articles of confederation of the United States, the dele- 
gates in Congress may not be eligible three years suc- 
cessively? 9. In case any alterations shall be made by the 
convention in the above points, how the several oaths pre- 
scribed by the Constitution shall be adapted thereto? "^ 

This action seemed to clear the political atmosphere in 
the Assembly somewhat. On November 30 Mr. Smith, 
Mr. Woods and Mr. Smiley were made a committee to 
confer with the Pennsylvania delegates in Congress on 
affairs in Westmoreland county. On December i General 
Joseph Reed, having resigned from the Assembly, which 
he never attended, and having been elected to the Council, 
was elected the second President of the State, with George 
Bryan again as Vice-President. 

After the December and January recess of the Assem- 
bly, which met again on February i, 1779, there were pro- 
tests against their action in providing for a new conven- 
tion. It was urged that it was unconstitutional and that 
a few years later it could be done as provided in the Con- 
stitution itself. ''Many of our fellow-members," said a 
Chester county citizen in the Gazette of February 3, "have 
sworn to maintain the State as now constituted, and so are 
excluded from joining in measures to alter it, until the end 
of seven years, two of which have already elapsed ; it is 

^ Journals of Assembly, Vol. I, p. 247. 



104 THOMAS SMITH 

therefore unjust for the other members to attempt any- 
thing now, till all are equally free to seek a convention, 
or not, as they shall then judge best." A caustic writer 
in the Pennsylvania Journal of the 17th attacks President 
Reed for apparently joining the ConstitutionaHsts. " When 
you was appointed Chief Justice," he writes, "you 
refused to act, because you could not, in conscience, take 
the oath. * * * How do you reconcile the part you 
have since taken, in support of the present government, 
and the appointment of President, w'hich you have ac- 
cepted, with your former professions? * * "^^ But what 
can we think of a man of your address and abilities, con- 
necting himself with a set of men, many of whom are 
men of desperate fortunes. Do you know more violent 
opposers of the Constitution than the present Speaker^ 
and Chief Justice- were a few months ago? — I suppose 
you are in the secret! Tell us, what was the reward of 
their treachery?"' Between these two classes of irrecon- 
cilables there were those who were seeking to take a wise 
course that would, if possible, make the question less 
of an obstruction to the greater conflict in progress, and 
unite the various elements of the State to make the best 
of what they had, while vigorously working for a Consti- 
tution in keeping with the best thought of the time. 

This session of the Assembly was a very busy one, and 
Colonel Smith was one of the most busy of its members. 
As a rule the party cleavage remained the same, and the 
anti-Constitutionalists, led by Philadelphia and Bedford, 
knowing themselves in the minority, took occasion, on im- 
portant questions, to have their reasons for dissent spread 
on the minutes. On the 4th of February Colonel Smith 
was made one of a committee of four to report on in- 
creasing the rates of excise, and on the next day was one 
of three to bring in a bill for that purpose. On this day, 
also, President Reed sent in the Council's message recom- 
mending, among other things, a Court of Errors, and a 
bill abolishing slavery, which had been urged before; "we 
feel ourselves so interested on this point," says the mes- 
sage, "as to go beyond what may be deemed by some the 



^ John Bayard. 

' Thomas McKcan. 



OPPOSITION TO THE CONSTITUTION 105 

proper line of our duty, and acquaint you that we have 
reduced this plan to the form of a law, which, if accept- 
able, we shall in a few days communicate to you."^ This 
act was the work of Vice-President Bryan, and ultimately 
became a law, but the sensitive Assembly resented the 
assumption of the Council and at once appointed a com- 
mittee to draw up a law of their own. On the 8th Colonel 
Smith was made chairman of a committee of five to draft 
instructions to the Pennsylvania delegates in the Congress 
across the hall, as to what was needed on the frontier. 
The following day he was made one of a committee of 
three to bring in a bill for the sale of forfeited estates, and 
a similar committee on fines and penalties for the neglect 
of duty in public offices, as well as one of like number to 
confer with Virginia delegates on the boundary question. 
The desire of Bedford to sell her old first court house was 
also referred to a committee of three, of which he was a 
member, on the nth of February. 

On the 13th the struggle over the Council's submis- 
sion of an abolition law came up, and the Constitutional- 
ists, by a vote of 27 to 22, voted that they would originate 
all bills themselves, refusing the minority amendment that 
the House committee would "no doubt receive any assist- 
ance which may be offered them." On the i6th he was 
made one of a committee of nine to confer with a Con- 
gressional committee on the defense of the frontier, and 
was unanimously made chairman of the Committee of the 
Whole on the question of monopolies or "forestalling." 
On the 17th Edward Biddle, Colonel Smith and Colonel 
Hartley, all anti-Constitutionalists, were made a com- 
mittee to bring in a bill creating a High Court of Errors 
and Appeals, and on the following day he was made one 
of a committee to prevent the distillation of grain. The 
currency had depreciated so much that it was causing 
trouble in all directions, so that a committee of five was 
appointed to consider its effects on supplies for the army 
and confer with a committee of Congress. To this, also, 
he was assigned. 

February 24 witnessed another contest over the ques- 
tion whether holding an office under Congress disquali- 

^ Journals of Assembly, Vol. I, p. 307. 



io6 THOMAS SMITH 

fied from membership in the Assembly. The anti-Consti- 
tutional party said not, and insisted that such a resolution 
was "contrary to the Constitution (which, however repug- 
nant it may be in this and in other instances, to the true 
principles of liberty, and the happiness of the good people 
of the State, it is our indispensable duty to keep unim- 
paired, until altered by those who alone have the right to 
do so, the people)" — all of which sounds very much like 
Smith's delicious irony in his letters to St. Clair. Of course, 
they were overruled, by a vote of 37 to 21. The same day 
an attack w^as made on Chief Justice McKean, although 
his name was not mentioned, when a vote was taken as to 
whether the Constitution allowed a member of the Supreme 
Court to represent another State in Congress. The Bed- 
ford and Philadelphia people could muster a vote of only 
12 in favor of the constitutionality of this condition. 

On the afternoon of the 27th came the real fight of 
the session. Petitions in great numbers had begun to 
come in protesting against the action of the Assembly in 
calling a new convention. A vote was taken as to whether 
the action should be rescinded or not, and it stood 47 to 7 
in favor of repealing the order. These seven gave their 
reasons for dissent and signed their names in the follow- 
ing order: Robert Morris, George Clymer, Thomas Mif- 
flin, Samuel Meredith, George Woods, Bernard Dough- 
erty and Thomas Smith — all of either Philadelphia or Bed- 
ford. Their objections were carefully and strongly put, 
the chief points being that there was danger of this Con- 
stitution becoming fixed on posterity; that the single- 
branch Legislature gave no guarantee of political liberty; 
that the executive power was so weakly arranged that it 
had no vigor, a situation which compelled arbitrary and 
unlawful usurpation of power at times, a dangerous prece- 
dent ; that the Council of Censors was a dangerous in- 
strument in the hands of designing men ; that the pro- 
vision by which Justices and militia officers were to be 
elected by the people was faction-producing and danger- 
ous; that the law of rotation in ofifice with limited service 
took away incentive; that the Judiciary were in too de- 
pendent a state; that the legislative, judicial and exec- 
utive powers are virtually placed in a single body, making 
it capable of despotism; that the remonstrances, which 



OPPOSITION TO THE CONSTITUTION 107 

numbered only slightly above 10,000, showed that they 
believed a majority of the people would favor a conven- 
tion ; that there was reason to believe many of the sig- 
natures were secured by misrepresentation; that there was 
no unity in the petitions, differing so much that some did 
not desire rescinding of the resolution unless the majority 
of the State did, and that no measures had been taken to 
investigate the petitions. 

This action was followed by great public excitement all 
spring, summer and autumn of 1779, ending only in the 
Third street tragedy in October. Violent controversies 
arose in the press, of which President Reed seemed to be 
most frequently the object. The depreciation of the cur- 
rency and consecjuent rise in prices had much to do with 
the disaffection, as well as the drastic measures against 
all suspected persons. The root of the whole matter, how- 
ever, was the fight over the Constitution, which now led 
to organized parties or "societies." 

Because at this time, early in March, 1779, Colonel 
Smith's brother (as he always called his half-brother), Dr. 
William Smith, became involved in a controversy in the 
press with President Reed,^ and the College of Philadel- 
phia became an object of attack by the radical party, it 
may be of interest to turn aside from the Assembly and 
notice a phase of Colonel Smith's life of which there has 
heretofore been no intimation. Dr. Smith, like even 
Washington himself, not to mention many others, had, 
even with all his encouragement of resistance, hoped that 
reconciliation between the colonies and Britain could be 
effected, but when the radical element came into power, 
he was set aside and was even among the number paroled 
when the British were about to take Philadelphia. He 
had a beautiful country seat at the Falls of Schuylkill, where 
Colonel Smith had been wont to visit him, when in the 
city, but during the British occupation Dr. Smith with- 
drew to his plantation farther up the Schuylkill, on an 
island, near Valley Forge and General Washington's army. 
After the evacuation he returned to his home at the Falls. 
Here Colonel Smith often visited him and, during this 
period and the next two years, his acquaintance with Miss 

^ The Pennsylvania Gazette, March 3, 1779. 



io8 THOMAS SMITH 

Letitia Van Dereii, daughter of John Van Deren of Wissa- 
hickon, was steadily acquiring a more than ordinary inter- 
est to him. He had been very active in pubHc hfe now 
for nearly a decade, and had reached the age of thirty-four, 
when, it would seem, the time must soon come, if likely 
to come at all, when love, as well as politics and war, might 
be added to his various interests. 

The month of March, 1779, however, was very fully 
occupied with politics, war and statesmanship. On March 
I Colonel Smith was one of a committee of twelve to effect 
a census of taxables to carry out the provision of Section 
17 of the Constitution for this year, and on the following 
day was one of a similar number to take up the claims 
of the late proprietaries. On the 4th he became chairman 
of a committee of five to digest a plan of compelling all 
persons entrusted with public moneys to account for them 
promptly. The case of the sloop Active came up on the 
8th, and he was one of five to confer with a Congressional 
committee on the admiralty proceedings in regard to it. 
On the next day the Supplies bill for 1779 came up, and 
on a vote as to whether moneys should be raised by city 
and county quotas, there was the first break in party lines 
in which yeas and nays are recorded. Colonel Smith voted 
in the negative or losing side, but on the next day, on the 
vote as to taxing ready money, his side won the negative 
— the anti-Constitutionalists being aided by a few from 
the other side. The committee on the admiralty case 
asked for instructions the same day, and a Congressional 
conference was asked, with the statement that there was 
no conflict, necessarily. 

At this time Colonel Smith received a letter from Gen- 
eral St. Clair telling him of the dangers of revolt in the 
Pennsylvania line of the army because of lack of provisions 
for them. This was not confined to the Pennsylvania line, 
but was quite general, and was due to depreciated cur- 
rency, in large measure. It was no doubt involved, too, 
by the Constitutional fight at home, although General St. 
Clair was not aware of it ; for in a letter to President Reed 
he said: "If any attempts have been made to engage the 
gentlemen of the army in the parties that unhappily dis- 
tract our State, it is altogether unknown to me, nor will 
it ever meet with my countenance ; and although I have 




CoiNTRv Seat ok Provost Dr. Smith at Schuylkill Falls, 
from a view with the portrait by Stuart, in possession 
of Dr. John H. Briiiton, Philadel|)hia 



OPPOSITION TO THE CONSTITUTION 109 

always been, from principle, opposed to our present Con- 
stitution, of which I have never made a secret (and in 
private life would have joined in any measures that promh 
ised to bring about an amendment), yet, whenever it ap- 
pears to be the choice of the majority of my fellow-citizens, 
I shall consider it as my duty to acquiesce. My opposi- 
tion never arose from a dislike to men, but because I 
thought it contained principles unfavorable to liberty, and 
must inevitably sooner or later end in a tyranny of the 
worst kind."i 

Colonel Smith at once, on March 11, moved for relief, 
and he was made one of a committee of seven to bring in a 
bill, which was done two days later, and generous provis- 
ion made. A few days later he wrote St. Clair: "I hope 
my friend will join with me in expressing his approbation 
of our resolves with regard to the army. Immediately on 
the receipt of your letter, I made the motion on which 
they were founded. * * * 'pj^g same committee that 
brought them in, brought in some others yesterday, as 
well for the benefit of the recruiting service, as to extend 
the operations of our first resolves more generally." 
Later in the year these resolves were put into statute 
form, and, says William Henry Smith, "It was through 
the efforts of Mr. Reed and Judge Thomas Smith, the 
very handsome provision made by Pennsylvania (which 
a year later was dwelt upon by Washington as a model 
for other States) was secured."* 

On March 19 Colonel Smith was made chairman of a 
committee of five to revise an act to incorporate the Scotch- 
Presbyterian Church of Philadelphia, and the next day 
one of nine to digest a plan for relief from "monopolizers" 
of necessities. This was one of the greatest questions 
before the people, and was one of the phases of the depre- 
ciation of the currency. On the 24th the Council asked 
for a conference on certain relations of the State to Con- 
gress, and he and Mr. Chambers were sent to arrange it. 
On the same day also he was made one of a committee of 
five to consider a resolution of Congress for ascertaining 
the quota of troops for each State. 

^ "The St. Clair Papers," Vol. I, p. 466. 
Mbid., p. 465. 
''Ibid., p. 480. 



no THOMAS SMITH 

Meanwhile, outside of the Assembly, the political sit- 
uation, as has been indicated, was becoming more and 
more tense. There had been a "Whig Society" for some 
time, organized by the Constitutionalists, and on March 
24 the Gazette published the announcement of the "Repub- 
lican Society" — a most able paper, which was attributed 
by the ConstitutionaHsts to Hon. James Wilson. "While 
we oppose tyranny from a foreign power," it read, "we 
should think ourselves lost to every sense of duty and of 
shame, were we tamely to acquiesce in a system of govern- 
ment, which, in our opinion will introduce the same 
monster, so destructive of humanity, among ourselves. 
Such a system we conceive the Constitution framed by the 
late convention to be. We mean not that, in all its parts, 
it is repugnant to the principles of liberty: Though, while 
some articles remain, we are convinced, upon the most 
impartial examination, that its general tendency and 
operation will be to join the qualities of the dififerent ex- 
tremes of bad government. It will produce general weak- 
ness, inactivity and confusion ; intermixed with sudden and 
violent fits of despotism, injustice and cruelty. Cannot a 
discrimination be made between its salutary and its per- 
nicious properties? We have the instruction of ancient 
and modern times for our guide: We have the conduct of 
the other States in the Union for our example. The wis- 
dom and patriotism of Pennsylvania is not inferior to the 
wisdom and patriotism of other commonwealths." This 
and the supplementary address covered two pages of the 
Gazette. Those who opposed the Constitution were called 
upon to make their endeavors even more earnest since the 
rescinding of the call for a new convention. It was signed 
by eighty-two members from all parts of the State, men 
like Meredith, Cadwalader, Clymer, Wilson, Ross, Edward 
Biddle, Thomas Smith, Benjamin and Jacob Rush, Robert 
Morris, Mifflin, Francis Hopkinson, Miles and Blaine. 

This was replied to on the 31st by one of the leading 
Constitutionalists, Timothy Matlack, Secretary of the 
Council, who treated Wilson as the author of it, and 
warned them that they were treading close to the dead line 
marked "Conspirators." His argument was almost wholly 
the fact that, as he said, Franklin had favored it, and as 
proof of this he dwelt lovingly on a new picture of Frank- 




Le DOCTEUR FrANCKLIN CoURONNE par la LlBERTE, 

The scroll on the glohe being the Constitution of 1776, to indicate 

that Franklin was its author 

Half-tone of engraving in possession of Albert Rosenthal 



OPPOSITION TO THE CONSTITUTION iii 

liii which he says Mr. Bache had just received from 
France, in which is drawn a scroll, inscribed with the 
words "Constitution of the Government of Pennsyl- 
vania." ^ 

On April 28 the friends of the Constitution an- 
nounced articles of association under the name of the 
"Constitutional Society," of which Charles Wilson Peale 
was chairman.- "As good and faithful citizens," reads the 
first article, "we will support, both as a natural and consti- 
tutional right, an equal and universal liberty of conscience, 
and any man or society of men in the exercise thereof. 
To God, and not to man, are all men accountable, and in 
doing this, we mean to do as zve ivoiild be done by." The 
whole paper has this tone of fiery zeal that characterized 
the writings of George Bryan, and one cannot read it with- 
out feeling that, however one might believe they were 
depending too much on their own consciences as a guide, 
without quite allowing for the general public conscience 
or the ordinary precautions of governmental science, 
they believed they carried the flaming torch of righteous^ 
ness. They were not the first zealots to whom a single 
principle or enthusiasm over-simplified life ; and though 
they did a great and glorious work, full of mistakes as it 
was, they took too limited a view of what was before them. 
Take out of these articles those parts upholding the Con- 
stitution of 1776, and possibly that defending the election 
of "Magistrates," etc., by the people, and there remain only 
expressions of political morality to which not a member of 
the Republican Society but could have heartily subscribed. 
Their articles were in reality the Constitution itself. They 
upheld the single branch Legislature, without mentioning 
it or attacking the upper house principle. They made 
much of having been at the head of the government during 
the war, which, it was now beginning to be felt, was nearly 
won, but they neglected to speak of the anti-Constitution- 

^ Richard Bache, son-in-law of Franklin, was the chairman of 
the Republican Society. The engraving- was a French one, rep- 
resenting Liberty crowning a bust of Franklin, which, with a scroll 
representing the constitution of '76, was held by a figure represent- 
ing Pennsylvania. Through the courtesy of Mr. Albert Rosen- 
thal, of Philadelphia, a reduced reproduction of it in these pages 
is made possible. 

^ The Pennsylvania Gazette, April 28, 1779. 



JJ2 THOMAS SMITH 

alists who were in the field, or the many who served in 
government with themselves, not to speak of the many, 
as great patriots as they, who, because they opposed radi- 
cal measures, were set aside. With all said, however, no 
one can come close to the life of George Bryan and the 
best of his supporters and not feel their lofty purposes and 
honesty of intention. It was a politico-sociological prob- 
lem working itself out. 

Turning from politics outside to that inside the As- 
sembly, and taking up proceedings where they were left 
en March 24, a Constitutional question came up on the 
very next day as to whether County Lieutenants and Sub- 
Lieutenants could sit in Assembly. It was carried by a 
vote of 30 to 21 in the affirmative, but Meredith, Smith, 
Clymer and eight others wrote out their dissent, insisting 
that these Lieutenants were appointed as civil officers by 
the Assembly, not elected, and would be voting on their own 
money accounts. If they were militia ofificers they should 
be elected, according to the Constitution. Colonel Smith 
and his associates were becoming strict constructionists. 
On the 27th, he and Mr. Chambers, out of a minority of 
eight, on a vote concerning an amendment to a replevin 
act, registered a protest against the legal inaccuracy of 
the act as leaving property insecure. On the same day he 
was made chairman of a committee of three on the regula- 
tion of ferriage in the State, The minority tried to defeat 
additional test oaths in a certain act on the 30th of March, 
but failed by a vote of 34 to 15; and the same day they 
were defeated in a vote on a legal clause giving extraordi- 
nary powers to Justices of the Peace. A call from Massa- 
chusetts for help in securing bread supplies was this same 
day referred to a committee of three, of which he was 
one.i 

The Assembly, having made a good record in amount 
of work done, hastened to finish so as to adjourn April 5. 
On April i, to Colonel Smith, chairman, and Mr. Clymer 
and Mr. Smiley, of Lancaster, was assigned the duty of 
drawing up instructions to the delegates chosen on March 

^ In a letter to Jasper Yeates. dated Aug. 30, 1799, Mr. Smith 
refers to a certain act, saying: "I was the only person in the As- 
sembly who spoke against the bill when first brought in." This 
is given as a mere glimpse of these days. 



OPPOSITION TO THE CONSTITUTION 113 

23 to settle the Virginia boundary question, namely, Vice- 
President Bryan, Rev. Dr. John Ewing and Mr. Ritten- 
kouse. The main point of these instructions was that 
they should arrange the true boundary, or, if that was not 
possible, a temporary one. Pennsylvania proposed to 
cling to the boundary she knew to be right. On April 3 
there was a party vote on the question of wages of team- 
sters between North Mountain and Fort Pitt — the minor- 
ity insisting on increased pay for that region and on in- 
creased wages for lieutenants of the city and counties, the 
minority opposing in the latter case. The last matter of 
special connection with Colonel Smith at this session was 
a message received the same day from Vice-President 
Bryan, who transmitted to the Assembly certain papers in 
a suit in Bedford county. "Of the merits of this trans- 
action," wrote Mr, Bryan, "the Council have nothing to 
communicate. Perhaps some of the gentlemen who rep- 
resent Bedford county, can furnish some explanations; 
particularly Mr. Smith, who, as attorney, brought the suit. 
This is an instance in point of the abuse of replevins, in the 
case of public officers (whatever ground there was for an 
action); an abuse to which we hope you have put a stop b}' 
the law just passed." 

With the adjournment of Assembly on April 5, to meet 
August 30, came a long interval in which Colonel Smith 
returned to Bedford, where he soon became busily en- 
gaged again as Assistant Deputy Quartermaster-General 
in charge at Bedford, to supply the Western Department 
which had been organized under Colonel Daniel Brod- 
head, with headquarters at Pittsburg. The date of his 
appointment by Colonel John Davis as Deputy Quarter- 
master-General at Carlisle is unfortunately not known, but 
a letter to him dated September 3, 1778, as well as others 
following, both to and from him, show that he was acting 
at that time, and had evidently been before serving in that 
capacity for a long time. This letter is an objection to a 
bill presented to him for ferriage of the Eighth Pennsylva- 
nia Regiment over the Juniata, and request for instruc- 
tions.i On the 21st Colonel Davis sends him $6,000 for 
current expenses, and addresses him as "A. D. Q. M. G." 

^ From the collection of C. P. Humrich, Esq., at Carlisle, Pa. 



114 THOMAS SMITH 

These letters indicate that Colonel Smith represented the 
Quartermaster's Department west of Cumberland county. 
In a letter of the 24th he speaks of one of his forage pur- 
chasers, Major Coulter, as having in a few days "saved 
the Continent at least 500 Dollars/' 

Even while he was in the Assembly at the State House 
he carried on these operations through a deputy, and a letter 
of March 13, 1779, from Philadelphia, to Colonel Davis at 
Carlisle, will serve to show the nature of his duties, as well 
as throw some light on the situation: "I was favored with 
yours by Mr. Scull and should have been glad if he could 
have sooner returned. I have requested Col. Pettit to 
dispatch him as soon as possible and I know his delay is 
not owing to him, but because the Treasury was quite 
empty when he came down. I at the same time received a 
letter from Mr. Clinton with 3,896 Dollars of the impassable 
Emissions, and informed me that by reason of the resolve 
of Congress for calling in the same he was greatly distressed 
for want of Money and requested me to send him up Money 
to replace that sum immediately, and also 6,000 Dollars 
more ; as there was but a trifle of the Public Money in my 
Hands I did not think it would answer any end to write to 
you till you received some Money. I would therefore re- 
quest you to send up the Quantity he wants as soon as 
possible either to him, or to Bedford to be sent from thence 
to him. I think Coulter will have as much as he can get 
grain to purchase, and then he will decline acting, at least 
till after Harvest. Whether Funk has laid out all the money 
in his hands I cannot tell ; but if he should want any he can 
get it to Borrow till I come up. I was sure when I saw you 
that what I then received would have been sufficient to pur- 
chase all the Forage that could be bought ; but the high price 
to which it has risen obliged me to make up the rest of the 
11,000 Dollars which I received of Col. Blaine in whose 
favor I have drawn an order on you for that amount — and 
I imagine that when I come up I shall want a small sum over 
and above what I now request you to send up to Clinton — 
because it seems to be the intention at present to carry on a 
vigorous Campaign to the Westward and Forage must be 
had; but I am sure I don't know where horses will be 
found. 

"I delivered the 3,896 Dollars," he continues, "to Col. 



OPPOSITION TO THE CONSTITUTION 115 

Petit but as I could not take the necessary afifidavit, as it 
had been out of my Possession, he could not replace it, but 
gave me a receipt that he would credit your account by that 
amount." 

Three days after the close of Assembly he was at 
Carlisle, and on the 19th of April writes from Bedford, 
urging supplies on to Fort Pitt, saying "much depends on 
their safe and speedy arrival there." ^ On the 24th he tells 
Carlisle headquarters of scarcity of forage over the whole 
region and urges each brigade to bring some forage along, 
until after harvest. A letter of the 15th tells of forwarding a 
packet of General Washington to Colonel Brodhead, and 
particulars about forage for Kennedy's brigade.- On May 
17, Colonel Brodhead writes him, as "D. Q. M. G.," telling 
him news of Indian warfare in New York, and adding: "The 
troops here are in great distress for want of provisions, and 
I am unable to strike a single stroke until a supply arrives. 
I am informed that a considerable quantity is arrived at Bed- 
ford and must intreat you if possible to send it on im- 
mediately."^ Later in the month, however, he mentions 
provisions as abundant for the future. On May 29th the 
Council votes Colonel Smith $14,000 for the frontier 
service.* 

During the next few months the increased alarm over 
the conflict with the Indians over the West led to re- 
organization of the militia and ranger service. The three 
battalions completed in Bedford were ready for officers in 
August, and on the loth the Council commissioned him 
Colonel of the First Battalion,^ The only light on the 
activities of this period is to be found in a letter Colonel 
Smith wrote to Council, on September 15, after his return 
to the Assembly at Philadelphia: "Col. Martin one of the 
sublieutenants of Bedford County, on his leaving Town 
lately, informing me that when the Indians made the late 
incursions into that County, he thought himself under an 
indispensable obligation to call out a few of the Militia and 
Station them in such places as to afford the utmost protec- 

^ This letter is in the excellent collection of Simon Gratz, Esq., 
of Philadelphia. 

^ The collection of C. P. Humrich, Esq., Carlisle. 

* Pennsylvania Archives, Vol. XII, Appendix, p. 112. 

* Colonial Records, Vol. XII, p. 9. 
^ Ibid., p. 70. 



ii6 THOMAS SMITH 

tion to the few Inhabitants yet remaining in that almost 
desolated country, that such a small number could do by 
ranging along the Frontiers and meeting each other at 
Stated Time & places and communicate their discoveries 
to each other. That he was happy to find that this mode 
gave great encouragement to the People & he hoped they 
would be able to relieve them at the expiration of their Tour 
— but to his great mortification there was not a grain of 
Powder more than what was delivered to the present Scout 
which would soon be exhausted and if a supply was not 
soon afforded those who were willing to turn out in defence 
of their helpless neighbors would not have it in their 
power — the consequences would most certainly be an evac- 
uation of the whole country — and intreating me to apply to 
the Council for a small quantity of that on which their 
preservation so much depends, not doubting but that Council 
would afford them every assistance in their Power as soon 
as they could get any Powder — which when he was in Town 
he believed they were scarce of. 

"Altho' I am convinced," he continues, "that Council 
have done everything in their Power for our Protection this 
summer, yet it has been our misfortune not to have had a 
single Man either for our own defence or escorting Stores 
to Fort Pitt, except a few of our own tired out Militia, and 
a few men of Capt. Clugages Company, who don't seem to 
be extended wide enough & only afford protection to one 
corner, altho' Col. Martin & myself by differing in 
Political sentiments which but too often give rise to a last- 
ing Personal enmity, are not upon such friendly terms as I 
could wish to be on with every Man, yet Justice to his con- 
duct requires me to declare that if it had not been for his 
patriotic exertions and indefatigable application, there had 
not by this time been an Inhabitant in the whole county."^ 

The Assembly had great difficulty in getting to work 
again, after the summer recess of 1779, so that it was Sep- 
tember 9 before they secured a quorum. He was one of 
the committee of twelve to revise the last minutes and lay 
unfinished business before the Assembly, as he was also one 
of a similar committee to consider the census returns, and 

^ Pennsylvania Archives. Vol. VII, p. 696. He adds in a post- 
script, "I have almost lost the use of my Hand, which I pray may 
be my Excuse for this scrawl." 



OPPOSITION TO THE CONSTITUTION 117 

the one to define the boundary between Bedford, Cumber- 
land and Northumberland counties. Congress, which was 
sitting across the hall all this time, had voted to raise 
$45,000,000, and the Assembly's committee on a bill to raise 
their quota by taxation included him. On the loth he be- 
came a member of a committee of three on levying and col- 
lecting taxes, and a like committee to act on the petition of 
the Sheriff of Philadelphia, on the 14th. On this latter day 
came up again the question of taxing by county quotas, and 
the western representatives, to the number of thirteen, op- 
posed it. Colonel Smith being among them. On the i6th he 
was made one of a committee of twelve on regulation of 
trade, a subject which grew out of the currency depreciation 
and was now reaching an acute stage. The report of the 
Virginia boundary delegates was referred to a committee of 
twelve, of which he was a member. A supplement to the 
test laws created a division on the 22d, on a clause calculated 
to punish those who would not take the oath. He was one of 
a minority of fourteen, as he was on the next day when the 
bill vesting estates of the late proprietaries in the com- 
monwealth was under consideration, the especial point being 
an order requiring "John Penn, esquire" to testify as to 
values of quit-rents and other matters. The same day he 
was one of a minority of twenty-one, on postponing legisla- 
tion on limiting the making of spirits from grain to the next 
Legislature. On the 27th Mr. Lollar and Colonel Smith ar- 
ranged a conference of the Assembly and Council, and after 
the conference was one of five to digest a plan to carry out 
its purposes to buy salt and flour for the fleet of the French 
allies. On the 28th a new clause of the test laws was voted 
upon, giving those in York, Lancaster, Berks and North- 
ampton six weeks, when Cumberland was allowed two 
months. It was only carried by a majority of six, and he led 
a group of five in voicing the reasons for dissent, saying, 
among other things, "as the house still pertinaciously ad- 
here to the determination of compelling those, who have 
given such test since the first day of June, 1778, to take 
another oath, or be excluded from the rank of citizens of 
that State to which they have already sworn allegiance; 
common justice required that such persons should have 
had a sufficient time allowed them to submit to the in- 
dignity thereby put upon them." Congress on the 30th of 



Il8 THOMAS SMITH 

September asked for a conference on the decision of the 
Court of Appeals in the case of the sloop Active, and 
Colonel Smith was made chairman of a committee of three 
to meet the Congressional committee. 

The Assembly had but ten days of October before its 
work closed, and they were busy days. On the 2d a 
motion was made for a committee to confirm the estates 
and charter of the College of Philadelphia and make them 
conformable to the new government, but an amendment 
was offered that the opinion of the Judges of the Supreme 
Court be taken before appointing the committee. This 
was a legal way of proceeding, and the minority of eighteen 
fought for it through a good many forms; finally Mr. 
Clymer and Colonel Smith led a group of ten in voicing 
dissent. It was a blunt paper, showing that this was an 
instance of the vicious operation of the present Constitu- 
tion, After showing that no evidence was given for the 
arbitrary course pursued, it continues, "Fourthly, Because 
the corporation has an undoubted right to the inestimable 
privilege of having matters of fact tried by a jury ; and 
matters of law determined by the judges, under the sanc- 
tion of their oath of office. It is utterly subversive of this 
privilege, and of the fundamental principles of freedom, to 
bring causes of this nature to receive a determination here. 
The great Montesquieu declares that 'there is no liberty if 
the power of judging be not separated from the legislative 
and executive powers. Were it joined with the legislative, 
the life and liberty of the subject would be exposed to 
arbitrary control; for the judge would then be the legis- 
lator.' Blackstone, in his commentaries on the laws of Eng- 
land, says, that 'in this distinct and separate existence of 
the judicial power, consists one main preservative of the 
public liberty. Were it joined with the legislative, the life, 
liberty and property of the subject would be in the hands 
of arbitrary judges, whose decisions would be then regu- 
lated only by their own opinions, and not by any funda- 
mental principles of law.' Any union therefore of the 
judicial and legislative powers in this state is of the most 
terrifying nature, and must afford the good people of Penn- 
sylvania this uncomfortable reflection, that every interest, 
and every right they possess, however religiously guarded 
by the law and the constitution, may be in the uncontrol- 



OPPOSITION TO THE CONSTITUTION 119 

lable and instant disposal of one single body of men, not 
bound to any certain measures of right, and liable as other 
men to be hurried on by the transient gusts of passion, or 
the storms of faction. And more especially, as there is no 
incompetency in the courts of law to the present object 
however important or considerable it may be. Fifthly, Be- 
cause one of the motives, which it is presumed has led the 
majority of the house to this determination, and which was 
urged with so much vehemence at the bar of the house, 
to zvit, the expediency and propriety of disfranchising cer- 
tain trustees of the college, for no other reason but that 
they had been at times, in their private capacities, desirous 
of promoting alterations in our constitution of govern- 
ment, discovers an intolerant and vindictive spirit, and 
indicates hostility against all such, however unquestioned 
their zeal or their services in the great and common Amer- 
ican Cause, as have dared to differ in sentiment, from 
those into whose hands the conduct of public affairs has 
chiefly fallen, in the local politics of Pennsylvania."'^ 

On the same day, when the Readjustment of Salaries 
bill was taken up — another result of depreciation of the 
currency, Colonel Smith was made chairman of a com- 
mittee of three to make a list of salaries as they were in 
1772. On the 4th there was so much excitement over 
the attack on James Wilson's residence, on the southwest 
corner of Third and Walnut streets, that the Assembly 
adjourned and could not get a quorum the rest of that 
day, although an effort was made twice. "The Fort Wil- 
son Riot," as it is called, was the climax of the irritation 
caused by the depreciated currency, consequent high prices 
of food, the efifort of a self-constituted committee to regu- 

^ Among the College Trustees at this time were James Ham- 
ilton, Benjamin Chew, Edward Shippen, Jr., Thomas Willing, Dr. 
John Redman, John Lawrence, Thomas Mifflin, Rev. Dr. William 
White, James Tilghman, Robert Morris, Francis Hopkinson, Alex- 
ander Wilcocks, George Clymer, John Cadwalader and James Wil' 
son, some of the strongest men under the old government, many 
of them strong supporters of the Revolution and leaders of the Re- 
publican Society, opposing the constitution of 1776. It is unnecessary 
to go into the history of the giving of the college over into a new 
University of Pennsylvania, the later restoration of the college, with 
the two institutions existing side by side, and their union in the 
present University in 1791, as Colonel Smith's relations to this matter 
practically ceased at this point. His brother, Dr. Smith, being the 
Provost, would make his activity not wise or useful. 



,ao THOMAS SMITH 

late prices and the refusal of Robert Morris and other 
large merchants to join them, and Wilson's defense of 
Morris and others before this, whom the mob of militia 
wrong-ly supposed to be the cause of it all. In July Mr. 
Morris had publicly explained his course and said he knew 
of no reason for this enmity except his opposition to the 
Constitution of '76; "my sole object," he wrote, "was to 
obtain such a Constitution as would in my opinion answer 
the ends of good government." Wilson's able defense of 
rights in court, however, had inflamed a certain part of 
the militia, and they started out to capture him. General 
Mifflin and other friends were with him, and when the mob 
broke in the Third street door several of them fell. Presi- 
dent Reed, with some of the City Troop, dispersed them 
at this point, however. The event seemed to rather startle 
both sides and compel greater moderation in party rancor. 
Indeed, it seemed to be a turning point, from which it 
became evident that the Constitution of '76 and its sup- 
porters must be given the trial they claimed for it, and 
that more than anything else the public attention must be 
centered on the condition of the currency, which made it 
impossible to approach other questions without undue irri- 
tation. The Constitution of '76 was destined to a trial of 
a full decade more. 

When the Assembly met on the morning of the 5th of 
October they sent a committee to assure President Reed 
of their support of his measures the day before and resumed 
business, chief of which was consideration of regulation of 
food prices. Messrs. Clymer, Smith and Harris were as- 
signed to take up some petition along this line, and 
Colonel Smith became one of a committee of four to ar- 
range with Council some method of showing honor to 
General Wayne and the troops of the Pennsylvania line. 
On the 9th he was made chairman of a committee to bring 
in amendments to the government security and militia 
laws, which were promptly acted upon, and on the loth, 
after recommending certain unfinished laws to the next 
Assembly, and urging delegates in Congress to by all 
means use every endeavor to solve the problem of public 
finances and the currency, the Assembly, the last in which 
Colonel Smith was to serve, and one in which he had been 
one of the ablest and most useful members, came to a 




James Wilson 

Half-lone of miniature in possession of 

rhomas H. Montgomery, Esq., 

West Cliester, Pennsylvania 



OPPOSITION TO THE CONSTITUTION 121 

close with the Constitution of '76, more strongly en- 
trenched than ever, but only for a time, until the excite- 
ments of the Revolution should abate and time should heal 
some of its wounds.^ 



Simon Gratz, Esq., of Philadelphia, has the manuscript order 
of the Speaker of the House on State Treasurer David Ritten- 
house, for Colonel Smith's salary and mileage for 215 miles of travel 
dated October 9, 1779, and calling for £422 10 shillings. Mr Gratz 
also has a letter of Mr. Smith, dated July 19, 1790, which says 
referring to the Bedford region in 1778-9-80: "I was in that part of 
the country during that period. & neither then, nor at any time 
before I received your letter, did I hear of a Fort of that name 
(i<ort i.oyal Whig)— perhaps it was baptized for this particular 
occasion. 



VIII 

Member of the Continental Congress and Active in 

Restoring National Finances 

1780 

By an interesting coincidence, the close of the late 
Assembly on October 10, 1779, and Colonel Smith's serv- 
ice as a representative, occurred at almost the same time 
as the Constitutional limitation of Vice-President George 
Bryan's service as a Councillor.^ The coincidence was 
highly significant. Busy as the late Assembly was, and 
much as it accomplished, it did not see its way clear to 
pass some of the measures which Mr. Bryan had most at 
heart, such as the Abolition of Slavery act and the one 
creating a High Court of Errors and Appeals. The Con- 
stitutionalists had found their majority in the late Assem- 
bly entirely too small for comfort, and the large opposi- 
tion, while it did not prevent the control of Mr. Bryan's 
party, was sufficiently strong and threatening to make 
them take a very moderate course — for them. They de- 
termined upon a vigorous program for the next election 
on the second Tuesday in October, namely the 12th, and 
frequent meetings of the Constitutional Society were called 
to consider "business of consequence," as the advertise- 
ments in the Gazette described it. Their plan was nothing 
less than a vigorous campaign over the State, and the 
resignation of Mr. Bryan so he could stand for the As- 
sembly and lead it in pushing through the various meas- 
ures determined upon. 

The old Assembly, as has been said, closed on October 
10, and this was followed on the nth by Vice-President 

^ Section 19, Constitution of 1776, which provides, inter alia, that 
after serving three years as Councillor, four years must intervene 
before he can hp c\prtpA ^<ya\n 



auer serving three years as C( 
before he can be elected again. 



122 



CONGRESS AND ITS FINANCES 12^ 

Bryan's resignation.^ The election occurred the next day at 
the State House, and Mr. Bryan was returned as the leader 
of the representatives in the Assembly from the city of 
Philadelphia, with the chairman of the Constitutional 
Society, Charles Wilson Peale, among his followers. It 
was plain that the whole State had gone the same way, so 
that the opposition in the new Assembly would be but a 
bare handful and not especially strong. Bedford only sent 
two representatives, and neither one of them was Colonel 
Smith. No quorum could be secured before November 2, 
which was over a week beyond the appointed time. They 
again organized, with John Bayard as Speaker and the 
celebrated author of The Crisis, Thomas Paine, as Clerk. 

It is not the purpose to enter into the operations of this 
Assembly, except so far as its action bears upon the career 
cf Thomas Smithy who at this date was at his home in 
Bedford, where he was busier than ever as Assistant 
Deputy Quartermaster-General. The Constitutional So- 
ciety's program was carried out in both letter and 
spirit, or, one might more accurately say Mr. Bryan's 
program, for if ever an Assembly was one man, certainly 
that of 1779-80 was that Assembly, and the one man was 
the late Vice-President. During the first session, namely, 
that between the organization on November 2 and the 
adjournment on the 27th, something over three weeks, 
there were thirty-nine committees appointed, covering all 
the important subjects which this Assembly proposed to 
push to passage. Of this number, the chairmanships of the 
astounding proportion of practically four-fifths, or thirty- 
two, were given to Mr. Bryan or Mr. Peale, and even then 
Mr. Peale only received five of the less important ones. 
It is doubtful if there is a more remarkable instance of 
one-man power in any Legislature in American history ! 
With the chairmanship of twenty-seven out of thirty-nine 
committees, Mr. Bryan was the head of every important 
committee of this Assembly, and consequently in absolute 
control of it. The situation was also one of the best re- 

^ Colonial Records, Vol. XII, p. 127: "I, George Bryan, who for 
upwards of two years last past have held and enjoyed the office of 
Vice-President of the Supreme Executive Council of the Cornmpn- 
wealth of Pennsylvania, do, on this eleventh day of October, in the 
year of our Lord one thousand seven hundred and seventy-nine, re- 
sign the said office. As witness my hand. George Bryan." 



124 THOMAS SMITH 

corded comments on the loyalty of his following and his 
acknowledged superiority over them. He was the revered 
leader of the common people and they gave him unques- 
tioned sway. Among the most notable bills of this short 
session which came to passage was that vesting the estates 
of the late proprietaries in the commonwealth, and the 
forfeiting of the college charter and erection of a State 
university upon its ruins. It is perfectly natural that Colo- 
nel Smith should not want to be a member of an Assem- 
bly which proposed to destroy the life-work of his brother 
and remove him from headship of an institution which he 
practically created and over which he had presided for 
over a quarter of a century .^ This was a part of the drastic 
program of Mr. Bryan and the Constitutionalists. The 
work was, of course, not all of this character ; but these 
radical measures were the ones this Assembly was espe- 
cially chosen to secure. 

The second session, which began the 19th of January, 
1780, and closed on March 25, saw the Philadelphia leader 
about as dominant as before. Of course, the comfortable 
majority of the Constitutionalists had by this time made 
a few cases of divisions among themselves in this session, 
and the already large burden resting upon Mr. Bryan, 
assigned at the last session and much of it still unfinished, 
led to a greater distribution of the less important assign- 
ments among other members. With all that, however, 
only twenty out of the fifty-two new committees appointed 
at this session were thus distributed, and by a striking 
coincidence Mr. Bryan and Mr. Peale received exactly 
the same number of new committees as at the last session, 
namely, twenty-seven for the former and five for Mr. 
Peale. These were all chairmanships, too, with but a 
single exception, in which Mr. Bryan was an ordinary 
member. The session was prolific for so short a one, 
especially when one man did so much of the work, for on 
the day of adjournment the seals were affixed to thirty-two 
important laws, some of them of the most far-reaching im- 
portance. One of these created the High Court of Errors 
and Appeals, which was afterward objected to because it 

^ Dr. Smith promptly went over into Maryland and founded 
Washington College, at Chester, in 1782, after a courageous effort to 
get the College of Philadelphia restored. 



CONGRESS AND ITS FINANCES 125 

was too largely dominated by the Supreme Court, which 
was a part of it, but this was in line with Mr. Bryan's 
principles of organization, however, one of which was the 
concentration of power. Indeed, the Philadelphia leader 
had now practically reorganized the whole State govern- 
ment, and had, so far, served in both the executive and 
legislative branches, where he determined many of their 
precedents. The only part in which he had not served 
was the judicial branch, and even that he had now recre- 
ated according to his own liking. Although he had been a 
merchant, he was an omnivorous student, and had read 
and practiced law, so that now, as a recognized leader and 
master of law-makers, it would not be strange if he should 
be thought fit for the judiciary, at least by his followers. 

The act of which Mr. Bryan himself was most proud, 
however, and the work which, more than anything else he 
did, will longer entitle him to fame, was that for the aboli- 
tion of slavery. He had recommended this even while he 
was Vice-President, over a year before, as an expression of 
gratitude for the deliverance from British tyranny and be- 
cause it was a strange anomaly for a people struggling for 
freedom to hold another people in bondage. The Pennsyl- 
vania Society for the Abolition of Slavery had been organ- 
ized at the opening of the Revolution, April 14, 1775, and 
the Friends had been active in agitation.^ So when the act 
was passed, on the 29th of February, 1780, by a vote of 
thirty-four to twenty-one, Pennsylvania, through Mr. Bryan, 
"led the way," says Bancroft, "toward introducing freedom 
for all." "Our bill," wrote Bryan to Samuel Adams, of 
Massachusetts, "astonishes and pleases the Quakers. They 
looked for no such benevolent issue of our new govern- 
ment, exercised by Presbyterians." ^ The bill became a law 
on the 25th of March, when the Assembly closed, but just 
before adjournment Mr. Bryan had the unique honor of 
having his hard and valuable work recognized by an extra 
appropriation of £500 "for extra services, rendered by him 
during the recess and present sitting of the house."" 

Mr. Bryan scarcely had time to clear up the business of 
the session before the Gazette announced that it was under- 

^The State then had about 6,000 slaves. 

^Bancroft's "History of the United States," Vol. V, p. 413. 

* Journals of Assembly, Vol. I, p. 454. 



126 THOMAS SMITH 

stood that he had been "unanimously" chosen by the Coun- 
cil as a member of the Supreme Court. This tribunal, 
heretofore the highest in the State, was composed of Chief 
Justice Thomas McKean and Justices William Augustus 
Atlee of Lancaster and John Evans of Chester, but, on 
April 3, nine days after the Assembly closed, "The Council 
taking into consideration the state of the Supreme Court, 
and being of opinion the interests of the State required an- 
other Judge, proceeded to choice, when the Hon'ble George 
Bryan, esquire, was unanimously appointed to that Of- 
fice," ^ and ex-oMcio member of the new High Court of 
Errors and Appeals, which was hereafter to be the highest 
tribunal, and which was organized three days later. The 
new High Court was composed of the President of the 
State, the Judges of the Supreme Court, the Judge of Ad- 
miralty and "three persons of known integrity and ability," 
so that when it was formally opened, on the 6th of April, 
1780, its legal members were President Reed, Chief Justice 
McKean, Justices Atlee, Evans and Bryan, and Judge 
Francis Hopkinson." The three others were not at once ap- 
pointed. It is interesting to note also the Register, who 
was William Bradford, Jr. With this event the forceful 
Philadelphia leader of the Constitutionalists was lodged 
in the highest tribunals of the judicial branch of govern- 
ment in Pennsylvania — and, as it proved, for life. While 
this by no means removed him as a political power, it did 
remove him from the Assembly and made possible several 
interesting developments pertinent to the career of Colonel 
Thomas Smith, of Bedford. 

Some time before the close of the Assembly, on February 
9, to be exact, Colonel Smith, who was busy with duties of 
the Quartermaster's service, as letters of that date 
abundantly show, was on his way to Philadelphia on that 
business, and to urge the Government to take still further 
measures for protection of the frontier.^ A single para- 

^ Colonial Records, Vol. XII, p. 303. 

^Acts of Pennsylvania, 1775-1782, p. 272. 

^The collection of C. P. Humrich, Esq., Carlisle, Pa. He 
writes under this date to Colonel John Davis at Carlisle, saying, 
among other things: "The snow is so deep that it was impossible 
for me to get the returns from the other Posts, & until I can get them 
it is unnecessary to send the few I have myself" — a glimpse of the 
conditions of his quartermaster service at this time. In this col- 



CONGRESS AND ITS FINANCES 127 

graph will illustrate some of the difficulties of his work: 
"The Bearer, Mr. Didier some time ago lent me 3000 Dol- 
lars which I expected to have paid him long ago, & am very- 
sorry that his readiness to oblige the Public has been a dis- 
advantage to him ; I have bought 73 Bushels of corn from 
him at Fort Cumberland. * * * j have drawn on 
you for the sum lent, the Price of the Corn & part of 
what is owing to myself, in the whole D 10,000 which I re- 
quest you will pay immediately as he is obliged on his way 
to Baltimore to come round by Carlisle, & if he should 
meet with any delay it will be a loss to him as he has en- 
gaged Horses to meet him there by a certain Day — should 
you borrow this by single Dollars, I hope you will not give 
him reason to reflect on me, which he has but to much 
reason to do already as I faithfully promised to pay him & 
he expected to have had it before Christmas — had not the 
Department been so scarce of Money I should think it but 
Justice to have let him have an equal sum to that which he 
lent me for the same Time." 

Colonel Smith arrived in Philadelphia, and nearly two 
weeks later, namely, on the 22d of February, 1780, he ad- 
dressed a letter to President Reed : "If public conduct mis- 
represented, & intentions misunderstood, were sufficient 
reasons for me to be silent in all public affairs, I should 
long ago have declined all share in them, but circumstances 
often occur when it would be criminal to be silent or neuter ; 
if any misrepresentation of mine can be the means of saving 
the Life of the meanest Citizen, I shall think myself amply 
paid for more undeserved obloquy than I ever met with. 

"My anxiety for the safety of the frontiers, my having 
been witness to so many scenes of Distress that thousands 
of families have had to struggle with for two years past, 
will I hope, plead my excuse for taking this liberty. 

"Your Excellency need not be informed that retaliation is 
a fundamental Law amongst the Indians, & seems to take 
the place even of self preservation. They have been severely 
chastized last summer, & the miseries they will undergo 
this winter in consequence of it, will render them desperate, 
& they will certainly make their last effort as soon as the 

lection also is Colonel Smith's "A. D. Q. M. G." account with the 
United States for November, 1779, the total paid out by him being 
$4,767.17, or £1,787 13s. I id., as exchange ran at that time. 



128 THOMAS SMITH 

season will permit, or at least they will pay us in kind; the 
People on the Frontiers have been so much harassed for 
these several years past, that they can make but very feeble 
resistance; many of them fled into the interior Counties, 
& rented Places, which rendered those who remain the 
weaker; without speedy assistance they cannot possibly 
stand it, but must abandon their settlement on the first in- 
vasion. 

"It would undoubtedly be deemed presumption in me," 
he continues, "to give my opinion on the mode of defence. 
I am sensible that I am a very incompetent Judge — five 
companies were raised last year for that purpose, but, tho/ 
I believe the officers who were appointed to command them, 
did everything in their Power, yet they did not seem to 
afford so much protection to the Inhabitants as could have 
been wished, and this I doubt [not] will generally be the 
case with temporary Troops; most of the mischief will be 
done before they can be ready for the Field, & the Ex- 
pense is certainly more than an equal number of permanent 
Soldiers. To call out the Militia against Indians is liable 
to equal inconveniences ; not one half are fit for that service, 
& they are scarcely arrived at the Place where the service 
is to be performed before their Time is expired, putting out 
of the Question the expence, & the inconveniences that we 
have already experienced to results from calling out Farmers 
from their Farms. 

"I believe, that at this Time no Money will procure a 
sufficient Number of Men for the defence of the Frontiers 
even for a season ; pardon me, therefore, if I suggest that if 
the Legislature was to offer a bounty in Land to such as 
would engage during the War for the defence of the 
frontiers against the Indians, & to be employed in that 
service only, & its faith Pledged that they should not be 
called away on any pretence whatever, & a certain portion 
of cloathing given them. I think something like this would 
be more effectual than any other Plan that occurs to me ; for 
there are many young fellows who are complete woodsmen, 
that are eager to engage against the Indians, if they had any 
security of such reward at the end of the war; they are 
perhaps fitter for that service than veteran Troops, capable 
to take the Indians in their own way; but they cannot for 
a considerable Time be brought to like the regular service. 



CONGRESS AND ITS FINANCES 129 

nor will they engage without they have the most explicit 
assurance that they shall be employed only against the 
Indians. 

"On every occasion that I have ever applyed to your Ex- 
cellency," he adds in closing, "I have always found you so 
ready to do every thing in your Power to defend us from 
our savage foe, that I need not urge you on this occasion, it 
is sufficient for me to suggest the necessity of speedy ex- 
ertions. I rest firmly assured that nothing will be left un- 
done for the protection of those who stand so much in need 
of it. I wish it was in their power to co-operate effectually 
with the assistance that may be sent to them from the in- 
terior parts of the Country; their own exertions must be 
feeble through want of Provisions. I am really afraid of 
famine on the frontiers before harvest; the hard winter has 
added to the scarcity that was the natural consequence of 
their being invaded every seed Time and Harvest for years 
Past."^ The Assembly handed in resolutions to Council on 
the subject the same day, and later a conference was held 
on the subject of the frontiers, and four companies ordered 
raised for ranger service, with a money bounty. Colonel 
Smith's entire suggestion was not therefore acted upon. 

The late spring session and early autumn or last session 
of this Assembly of 1779-80 were without especial sig- 
nificance, except that Dr. James Hutchinson succeeded Mr. 
Bryan and the latter, as head of the Virginia Boundary Com- 
mission, before mentioned, reported what finally became the 
solution of that much-vexed question and secured the ex- 
tension of Mason and Dixon's line to a meridian at the end 
of five degrees from the Delaware — the present boundary. 
But during the summer it became evident, as plans ripened 
for French cooperation in a final campaign in the south, 
that the men best able to deal with the financial question 
must get together and take it up in both the Assembly and 
Congress. In July, Robert Morris, President Reed and 
others, most of whose names would at once be recognized 
as anti-Constitutionalists, announced the organization of the 
Bank of Pennsylvania on June 17, 1780, with a subscribed 
stock of £315,000. Robert Morris was at the head of the 
responsible body, called the Inspectors, and the avowed pur- 

^ Pennsylvania Archives, Vol. VIII, p. 113. 



I30 THOMAS SMITH 

pose was to supply provisions to the United States army for 
two months.^ There seemed to be renewed hopefulness 
that the end of the conflict was approaching, and the 
financial question was the chief problem to be faced. - 
Fluctuation of the Continental money was so great that 
later in the year a public meeting in the Assembly rooms 
passed a resolution that the ratio be fixed, altho' they had to 
agree that it be twenty-five to one of specie!^ 

The new purposes were shown in the returns of the 
next Assembly, which was to meet on October 23, but in 
fact could not get a quorum until November 3. The most 
significant change was the appearance of Robert Morris 
and Frederick Augustus Muhlenberg from the metropolis 
and General Thomas Mifflin from Berks. Mr. Muhlenberg 
was made Speaker and Robert Morris was the most influ- 
ential leader. Passing over the events of the first three weeks 
of the session to the 23d of November, the day of election of 
delegates to Congress, this day had been set aside on the 
i6th for this purpose, and they picked out strong con- 
servative men, as far as possible. These were Joseph 
Montgomery, Samuel J. Atlee, Henry Wynkoop* of Bucks 
and Thomas Smith of Bedford. Immediately thereafter 
a committee of five, headed by Mr. Morris himself and in- 
cluding General Mifflin and Major James Smith of York, 
was appointed to draft instructions. This was the session 
at which impeachment proceedings were brought against 
Hon. Francis Hopkinson, Judge of Admiralty, so that the 
instructions to the delegates were not finally adopted until 
exactly a month later, December 23, and they were then 
marked "(Private)."^ 

"Confiding in your integrity, ability and attachment to 
the cause and interests of the united states," this most in- 
teresting paper proceeds, "we have appointed you to rep- 
resent this commonwealth in Conoress. 



]|The Pennsylvania Gazette, July 5, 1780. 

- It may be noted that Arnold's treason came to light during the 
autumn of 1780. 

^ Gazette of November 22, 1780. 

* Judge Henry Wynkoop had been appointed to the High Court 
of Errors and Appeals on the 20th, three days before, as also had 
Major James Smith, of York, two of the three persons of known 
mtegrity and ability. Colonial Records, Vol. XH, p. 548. 

^ Journals of Assembly, Vol. I, p. 564. 




Hfnr'i' VVvnkoop 

Half-tone of painting in possession of 

Mrs. W. L. Pusser, Boston 



CONGRESS AND ITS FINANCES 131 

"The trust reposed in delegates to Congress is at all 
times important: at this juncture it is peculiarly so. We 
cannot, nor do we wish to, direct your deliberations and 
your votes in every question that may come before you. 
We trust in your patriotism and good sense, that you will 
deliberate and vote in a manner which will entitle you to 
the approbation, the support and the gratitude of your 
constituents. 

"The following subjects are, however, of more than 
ordinary magnitude, on which we think it necessary to 
give you our sentiments : 

"First. You will do everything in your power to re- 
trieve the finances of the united states from the disorder 
into which they have unfortunately fallen. As one means 
of accomplishing this desirable end, we recommend to 
you earnestly to promote frugality and oeconomy in the 
public expenditures, to urge the reduction of all unneces- 
sary offices and officers, and to ascertain with accuracy 
the pay, salaries, and other allowances of officers neces- 
sarily employed. 

"Second. The western or late crown lands are an 
object which deserves particular attention. We appre- 
hend that the property of those lands is devolved to the 
united states. If a proper use is made of them they may 
be productive of ample funds for carrying on the present 
just and necessary war, and consequently for alleviating 
the burthens of this and the other confederated states. 

"Third. The state of Connecticut still persists in her 
claim to a very considerable part of Pennsylvania, and has 
hitherto refused to comply with the very just and equitable 
proposals made on the part of this commonwealth for 
finally determining the controversy between the two states. 
You will carefully watch and strenuously oppose every at- 
tempt that may [be] made to injure your constituents on 
this subject; and you will endeavor, by all proper means, 
to bring it to an amicable accommodation, or to a legal 
decision. 

"Fourth. Before you vote for the appointment of any 
officer, you will enquire into his character and his fitness 
for the office for which he may be named. You will choose 
with impartiality and without favor; you will reject with 
candor and without prejudice. 



132 THOMAS SMITH 

"Fifth. Before you vote for the removal of any of- 
ficer, you will maturely weigh his conduct in office; you 
will consider the necessity or the evident propriety of re- 
moving him: And when you vote to remove you will af- 
ford no room for suspicion that your vote has been dic- 
tated by an unsteadiness of politics, an unworthy influence, 
or a desire to open a door for the introduction of a favorite 
successor. 

"Last. Imposts on trade appear to us absolutely neces- 
sary at this time. But as such imposts should be generally 
established in order to prevent any state from taking ad- 
vantage of a neighbor, we instruct you to urge Congress 
to recommend to the several states in union such a system 
of imposts as may, without injury to commerce, produce 
a certain and beneficial revenue." 

It will thus be seen that Mr. Morris and his associates 
had begun to define a financial policy for Congress, the 
chief elements of which were economy, sale of public lands 
and a tariff for revenue. These were the main points of 
the instructions, the others being the purity of the public 
service and settlement of the Connecticut claims to Penn- 
sylvania territory. It is true they had a tremendous 
problem to face, and these efforts, begun so late and under 
the feeble power granted to Congress by the Articles of 
Confederation, could not ward off the suffering that must 
be the logical result of floods of paper issues far beyond, 
indeed, many times beyond, the needs of a circulating 
medium. "And with wagon loads thus cheaply obtained," 
said Samuel Breck in an address before the American 
Philosophical Society in 1843, "they carried on the cam- 
paigns of the two years, 1778 and 1779, keeping an army 
of thirty or forty thousand men in the field, issuing paper 
to the amount of sixty-three millions for the former year 
and seventy-two millions for the latter; and thus, with an 
active printing press and a few commissioners hired by 
the day or by the job to sign the bills, ways and means 
were found to defray almost the whole expense of the 
civil list, the army and navy and contingencies. There 
was, indeed, a little hard money passing through the 
treasury. The exact sums received in both those years 
having been officially reported to Congress, stand re- 
corded on their journals. If it were not attested in this 



i 



CONGRESS AND ITS FINANCES 133 

authentic shape it would be difficult to believe it. Marvel- 
lous as it may appear, the ag^gregate of gold and silver re- 
ceived into the treasury for the year 1778 was only sev- 
enty-eight thousand six hundred and sixty-six dollars 
[$78,666] ; and for the year 1779 the sum of seventy-three 
thousand dollars [$73,000] ; so that the whole machinery 
of government was carried on, for tzvo entire years, as far 
as concerned the agency of specie, with one hundred and 
fifty-one thousand six hundred and sixty-six dollars!! So 
small an expenditure, in metallic currency, shows the power- 
ful agency of paper in the belligerent operations at that 
critical period; performing as it did, in spite of counter- 
feits and depreciation, the office of hard money." ^ 

With these conditions before them, the Pennsylvania 
delegates to Congress gathered one by one in the eastern 
chamber of the State House, at Sixth and Chestnut streets, 
after their appointment on November 22, 1780. Mr. 
Clymer attended to present the delegates' credentials on 
the 24th, and would have had occasion the next day to 
vote on removal of the military stores department of the 
United States to Carlisle, Pennsylvania, and on the 30th 
on the establishment of a Commissary of Purchases, with 
Colonel Ephraim Blaine for Commissary-General, had he 
taken his seat, which he did not do until later. On De- 
cember 6 Mr. Atlee arrived and was followed by Mr. Mont- 
gomery two days later.- They had opportunity to vote on 
the matter of Continental forces, containing neither Pennsyl- 
vanians nor citizens of Connecticut, in the fort at Wyoming. 
Judge Wynkoop took his seat on the 19th, and the first thing 
that came up was consideration of the manner of receiving 
into the Continental Treasury specie at the rate of "75 
Continental dollars for i of specie." These members had 
occasion, on January 10, 1781, to take part in the creation 

^ Historical Sketch of Continental Paper Money, by Samuel 
Breck, p. 13, Philadelphia, 1843. The depreciation finally became so 
great that in mockery and fun tradesmen would paper their walls 
with it and rollicking sailors have jackets made of it. 

" Rev. Joseph Montgomery, of Lancaster county, was born in 
^733) a son of Scotch-Irish Presbyterian parents. He graduated 
from the College of New Jersey in 1755. Among his college-mates 
were Dr. John Ewing, Dr. William Shippen and President Joseph 
Reed. He was a Presbyterian minister of prominence, and became 
a chaplain in the Revolutionary army in 1777, and was elected to 
Congress late in 1780. He died in 1794. 



134 THOMAS SMITH 

of a Department of Foreign Affairs. On the 15th Con- 
gress issued a plea for more funds, saying "It was found 
expedient to discontinue the emission of paper money." 
This was for the pay of the army in the South. 

As Colonel Smith had far the longest journey to make, 
it was February 3, 1781,^ before he was able to take his 
seat, this time on the east side of the State House hall, 
opposite the old Supreme Court room in which he had 
seen such varied services for his adopted State. In this 
chamber was the capitol of the struggling young nation, 
not yet, indeed, legally a nation, for the last of the States 
had not yet ratified the "Articles." He had been called to 
join in its councils and aid in restoring its finances — an 
almost impossible problem, to be sure, so long as the 
"Articles," which gave Congress so little power, were their 
Constitution. Nevertheless, he was called to do what 
could be done, and was well assured that he would be 
supported so long as there was a majority made up of 
moderate "anti-Constitutionalists" in the Assembly across 
the hall. He realized the magnitude of the work of Con- 
gress, too, which was not less, but greater even than it was 
five years before. "The business I have upon my mind," 
wrote John Adams, in the Congress of 1775 at Philadel- 
phia, to his wife at home, "has been as great and important 
as can be intrusted to man, & the Difficulty and Intricacy 
of it is prodigious. When 50 or 60 men have a Constitu- 
tion to form for a great empire, at the same time that they 
have a country of 1500 miles extent to fortify, millions to 
arm and train, a naval power to begin, an extensive com- 
merce to regulate, numerous tribes of Indians to negotiate 
with, a standing army of 27,000 men to raise, pay, victual 
and officer, I really pity these 50 or 60 men." 2 The "50 
or 60 men" had done this, in the only way open to them, by 
paper money, and now it was left to about half that number 
to make the paper promises good. 

Colonel Smith's very first day in Congress witnessed 
the passage of a resolution recommending to the States 
that Congress be given power to take charge of a general 
system of duties on imports on a five per cent, ad valorem 

^ Journals of Congress, Vol. VII, p. 21. 

" Dated July 24, 1775, and in the Yeates Collection of Manu- 
scripts at the Pennsylvania Historical Society. 



CONGRESS AND ITS FINANCES 135 

basis, to begin May i next following, for the sole purpose 
of discharging the public debt, both principal and interest 
— "the said duties to be continued until the said debts 
shall be fully and finally discharged," As May i was so 
near at hand, Congress, on the 7th of February, i. e., four 
days later, provided that it should begin on the day the 
last State necessary consented. 

On the same day, namely the 7th, the further con- 
sideration of the organization of civil executive depart- 
ments came up, and it was resolved that a Department of 
Finance should be created, with a superintendent, who 
should have general supervision over all matters of Con- 
gressional finance. He was to examine into the condition 
of public accounts, digest a plan for improving the financial 
side of government, and, in short, to be the forerunner of 
our modern Secretary of the Treasury. Two days later 
his salary was fixed at $6,000, one thousand more than the 
Secretary of War or "Marine," as those new officers were 
called. The plan required several days of consideration. 
Meanwhile, on the 12th, Maryland gave instructions to her 
delegates to sign the "Articles," without, however, affect- 
ing her right to Western lands claimed by her. As she 
was the last State to sign to make the confederation a 
fact, preparations were made to celebrate the event. On 
the 20th all troops, with certain exceptions, were ordered 
to the army in Virginia, to prepare for what proved to be 
the final campaign of the long struggle for national exist- 
ence. Immediately following this, Hon. WilHam Floyd, of 
New York, nominated Robert Morris, Esq., of Pennsyl- 
vania, as Superintendent of Finance, and he was unani- 
mously elected. It was plain that if Mr. Morris was recog- 
nized as the leading financier of the metropolis and capital, 
his services might naturally be availed of in this great crisis 
of the nation. 

On a birthday that it has long been a delight to honor, 
namely, February 22, while General Washington was 
closing in on Cornwallis and his army, the last Maryland 
delegate took his seat, and a day, a week later, was set 
for completing the confederation. On the 26th Colonel 
Smith saw the Pennsylvania Chief Justice, Hon. Thomas 
McKean, enter the chamber as the representative of Dela- 
ware, and on the following day Captain John Paul Jones 



136 THOMAS SMITH 

was voted their appreciation of his destruction of the 
Serapis. 

Twelve o'clock, Thursday, March i, the hour for com- 
pleting the confederation arrived, and now, after over 
three years since Congress had submitted them to the 
several States, the Articles of Confederation were ratified 
and announced.^ "This happy event," said the Gazette, 
when it was issued on the 7th at the office near the great 
market in High street, near the court house,^ "was im- 
mediately announced to the public by the discharge of 
the artillery on land, and the cannon of the shipping in the 
river Delaware. At two o'clock His Excellency, the Presi- 
dent of Congress, received on this occasion the congratu- 
lations of the Hon. the Minister Plenipotentiary of France, 
and of the Legislative and Executive Bodies of this State, 
of the Civil and Military Officers, sundry strangers of dis- 
tinction in town, and of many of the principal inhabitants. 
The evening was closed by an elegant exhibition of fire- 
works. The Ariel frigate, commanded by the gallant John 
Paul Jones, fired a feu de joyc, and was beautifully deco- 
rated with a variety of streamers in the day, and orna- 
mented with a brilliant appearance of lights in the night. 
Thus will the first of March, 1/81, be a day memorable 
in the annals of America for the final ratification of the 
Confederation and perpetual Union of the Thirteen 
States of America — A Union, begun by necessity, 
cemented by oppression and common danger, and now 
finally consolidated into a perpetual confederacy of these 
new and rising States : And thus the United States of 
America, having amidst the calamities of a destructive 
war, established a solid foundation of greatness, are grow- 
ing up into consequence among the nations, while their 
haughty enemy, Britain, with all her boasted wealth and 
grandeur, instead of bringing them to her feet and re- 
ducing them to unconditional submission, finds her hopes 
blasted, her power crumbling to pieces, and the empire 
which, with overbearing insolence and brutality she exer- 



^ The Articles were first agreed on and submitted for ratifica- 
tion November 15, 1777. 

^ Market street of to-day, at Second street. 



CONGRESS AND ITS FINANCES 137 

cised on the ocean, divided among- her insulted neigh- 
bors." ' 

On the next day the minutes were proudly headed 
"The United States in Congress assembled, March 2, 
1781" — and the members present in this first National 
Congress had their names formally spread upon the min- 
utes in honor of the event. Among these were Samuel 
Adams of Massachusetts, Witherspoon of New Jersey, 
Atlee, Wynkoop and Smith of Pennsylvania, Thomas Mc- 
Kean of Delaware and James Madison of Virginia. It 
had been not quite five years since the independence of 
the States composing the young nation had been declared 
in this same room — a few days before Colonel Smith and 
his associates had gathered in the room across the hall to 
make a State Constitution. A hallowed room is this ; let 
it ever be held sacred ! 

On March 3 the last of the Pennsylvania delegates, 
George Clymer, took his seat. Congress was a secret 
body in those days, and even the yeas and nays were sup- 
pressed in the minutes. It was beginning to be felt that 
the reason for this was long past, that but few sessions 
need be behind closed doors, and that yeas and nays might 
be had at any time. On the 6th it was determined that 
Tuesdays, Thursdays and Saturdays should be set aside 
for the subject of finance, so that much of the attention 
of Congress was now devoted to that theme. On the i6th 
a resolution was passed urging the States to declare that 
all debts should be actually paid at current exchange rates, 
and that no tender value shall be required but what was 
actually current and real. This drew forth the yeas and 
nays, and there was but a single "no," and this from New 
Jersey. The same day $1,500,000 was called for, from 
the States, and the emitted bills to cover this were to 
be received at the treasury as equal to specie. A com- 
mittee of one from each State was appointed to make out 
the quota for the States, Mr. Clymer appearing for Penn- 
sylvania. 

On March 19 the yeas and nays were again asked for 
on the question of drawing on the United States Minister 



^ In the same issue the Council announce that the legal rate 
of exchange of paper for specie is 75 to i. 



138 THOMAS SMITH 

at Versailles for $55,331 1-3 to fulfill a contract for shot and 
shells. It passed by a large majority. On the next day 
on a technical correction in the minutes the yeas were 
desired, and the majority declared against the technical 
point, Colonel Smith being among them. Immediately 
following this, however, he was on the losing side, on a 
vote to not require Superintendent of Finance Morris to 
relinquish all connection with business enterprises, Mont- 
gomery, Clymer and Smith voting that it should not be re- 
quired. An excellent letter from Mr. Morris was then 
read, in which he declined to violate contracts already 
undertaken, and on another vote Mr. Morris' friends 
gained their point. On the 21st Colonel Smith was 
absent, but it was quite evident by this time that the Penn- 
sylvania delegation was a unit on financial matters at 
least. It was voted at this session to give Superintendent 
Morris control of his assistants. Colonel Smith was also 
absent on the 226, when the question of a tarifif for revenue 
came up, and a statement made that the annual interest on 
the public debt was now over a million dollars. This was 
in the form of a request to Connecticut to make her laws 
agreeable to vesting in Congress the power of levying 
duties. Mr. Morris accepted the office of Superintendent 
of Finance on May 14. 

Just how many days Colonel Smith was absent is not 
known, but a call of the yeas and nays on May 18 shows 
him voting "no" with Mr. Atlee, and carrying the dele- 
gation vote against giving General Wayne the power to 
impress supplies in order to go to the Southern army, 
Pennsylvania being the only State to vote so. On the 
226. of May, Pennsylvania, Georgia and North Carolina 
were on the losing side in a vote to have the National 
Treasury accept local exchange rates at the time pay- 
ments were made. This was on a call for yeas and nays 
by Colonel Smith himself. The same day vigorous reso- 
lutions were passed, taking measures to fund the national 
debt and place it as loans at interest, and also urging the 
States to respond to the calls for money, and directing 
the National Treasurer to draw on the several States for 
the several amounts, to be payable in thirty days. On 
the 23d, on a resolution to move prisoners to Massa- 
chusetts, he voted no, against both Clymer and Atlee, but 



CONGRESS AND ITS FINANCES 139 

on "Massachusetts" being removed from the resolution 
and discretion given the Board of War in the matter, he 
voted for it and it was passed. 

Congress had various details from day to day at the 
State House square in carrying on the routine of its work 
which, of course, cannot be considered in brief space, nor 
is such consideration necessary in order to gain some con- 
ception of Colonel Thomas Smith's relation to its work. 
On the 26th of May, however, a very important measure 
came up, in action on a recommendation by Superintend- 
ent of Finance Morris, on the 17th instant, that his plan 
for a National Bank of the United States of North America 
be adopted. The committee which reported in favor of it 
included Mr. Clymer as the Pennsylvania member, and 
the plan itself mentioned him and John Nixon as the 
organizers of the institution.^ The corporate name was 
to be "The President, Directors and Company of the Bank 
of North America," and it was plainly suggested by and 
modeled after the previously mentioned Bank of Pennsyl- 
vania. Forthwith began the famous and long-continued 
fight against a bank fostered by the nation, with which 
every student of our history is familiar. The capital was 
to be $400,000 at first; there were to be twelve directors, 
and the Superintendent of Finance was to be its inspector. 
When the vote came, Colonel Smith called for the yeas 
and nays. The resolution read : " That Congress do ap- 
prove of the plan for establishing a national bank in these 
United States, submitted to their consideration by Mr. 
R. Morris on the 17th of May, 1781 ; and that they will 
promote and support the same by such ways and means, 
from time to time, as may appear necessary for the insti- 
tution, and consistent with the public good; that the sub- 
scribers to the said bank shall be incorporated agreeably 
to the principles and terms of the plan," etc. Whether 
Colonel Smith objected to the plan in detail or to the 
whole principle of a national financial monopoly, as it was 
proposed to make it, but which purpose did not appear 

^"Journals of Congress, and of the United States in Congress 
Assembled, for the year 1781," Vol. VII, p. 108, Philadelphia, 1781. 
(Claypoole's edition published by order of Congress.) The edi- 
tion of 1800 is so inaccurate, in this instance, as to make the resolu- 
tion on this plan read directly opposite to its true reading. 



I40 THOMAS SMITH 

in the plan or resolution, is not known; but when the yeas 
and nays were taken, Colonel Smith voted against it, 
thereby dividing the State vote, Mr. Clymer voting for it. 
He was in good company, however, for James Madison of 
Virginia voted likewise, and both of the Massachusetts 
delegates joined them. Of course, it was in vain. The 
plan was adopted. Colonel Smith could go a good dis- 
tance with Superintendent Morris, but he apparently could 
not go to the extent of a Congressional monopoly of the 
banking business, for immediately after the vote, it should 
be added, other resolutions were passed, recommending 
the States to forbid other banks and making the issue of 
this one legal tender.^ 

On June 2 an effort was made to have the States sus- 
pend issuing certain bills under the act of March i8, 1780, 
which was carried, but on an effort to qualify this Colonel 
Smith joined the majority in voting against any qualifica- 
tion. On Monday, June 4, he was made chairman of a 
committee of three to meet the Supreme Executive Coun- 
cil of Pennsylvania, as requested, to discuss Quarter- 
masters' and Commissaries' certificates. This was the first 
committee on which he served. Ten days later, the 14th 
of June, there came up the matter of exchanging General 
Burgoyne for the Hon. Henry Laurens. Mr. Atlee called 
for the yeas and nays, and he, Mr. Clymer and Colonel 
Smith voted against it, carrying their State vote against 
Mr. Montgomery — the only State which voted no, except 
New Jersey. Mr. Carroll of Maryland and Mr. Madison 
of Virginia joined them, too, but in vain. A division oc- 
curred, also, on the i6th, wdien the question of court- 
martial sentences to punishment came up, in which the 
house was pretty evenly divided, the whole Pennsylvania 
delegation being in favor of it, but it was lost. So, too, 
on the i8th there was a division on the abolition of State 
purchasing or appointing power in the clothing depart- 

^ The first page of The Gasette of June 6 was given up to the 
plan and Mr. Morris' excellent explanation of it. Mr. Clymer and 
Mr. Nixon were the directors of the Bank of Pennsylvania. 

^ Pennsylvania had not fancied the sending of Mr. Laurens to 
practically supersede Franklin — at least admirers of Franklin did 
not. The Revolution had its struggles over the young and old man 
question, as well as later periods. 



CONGRESS AND ITS FINANCES 141 

ment of the army, the whole Keystone section voting- in 
favor of it with successful results. 

On the 20th there was another division on the question 
of payment of a certain account by the Superintendent of 
Finance, in which the Pennsylvania delegation voted 
solidly for it, and it was passed. On the 22d Colonel 
Smith was made chairman of a committee of four, one of 
whom was Thomas McKean, to determine on the allow- 
ance to be made those to whom was assigned the destruc- 
tion of recalled currency. June 25 had been set for the 
consideration of a Court of Appeals in cases of capture, 
and during progress Colonel Smith called for the yeas 
and nays as to whether Judges of it should hold office 
during- good behavior. He and the whole of his State's 
delegation voted in favor of it, but the New England States 
and New Jersey voted against it, with a no from Mr. 
Madison, and it was lost. On the 28th he was made a 
member of a committee of three to arrange the transfer 
of various boards, whose work was to be included in the 
new Department of Finance. This committee had other 
matters referred to it, and on July 6 it reported in favor 
of validating the acts of Superintendent Morris done while 
in ofifice, but previous to taking the oath of it. It also 
reported favoring the late act of the Assembly of Penn- 
sylvania, whose State paper could not now buy supplies, 
authorizing the Superintendent of Finance to do so and 
charge it to the State account This was voted by Con- 
gress as distinctly a move forward, indicating the value of 
the new Department of Finance. On the same day an 
effort was made to postpone the election of a Secretary 
of Marine to the next session. Colonel Smith's and Mr. 
Clymer's votes carrying Pennsylvania for it, but it was 
lost. Another division came up on July 7 on the question 
of directing certain suppHes over the head of the Southern 
department, in which he was inclined to respect the dis- 
cretion of the head of the department. 

On Tuesday, July 10, he joined in the election of the 
Chief Justice of Pennsylvania and representative of Dela- 
ware, Hon. Thomas McKean, to the Presidency of Con- 
gress. Immediately thereafter he seconded a motion for 
a committee of five to confer with the Superintendent of 
Finance on a plan to pay expenses of such delegates as 



142 THOMAS SMITH 

from the events of the war were unable to support them- 
selves and attend Congress, and concerning certahi sal- 
aries. The next day he called for a division on the ques- 
tion of the future pay of Baron d'Arendt, and the Penn- 
sylvania delegation voted with the majority that it should 
not be considered, although they voted for payment for 
his past services. There was a similar division on the 
1 6th of July, and also on the 21st, Colonel Smith being on 
the losing side, regarding postponement of consideration 
of a loan to certain persons from Charlestown. On the 
23d an attempt was made to have all clothing given by 
the various States to their troops credited to their tax 
quota, but he joined the majority against it. 

Early in August he was again absent, but on the 20th, 
when certain bills, drawn by British prisoners in Connecti- 
cut, w^ere reported protested, the matter was referred to a 
committee composed of Messrs. Boudinot, Thomas Smith 
and George Clymer. On the same day he voted afifirmative- 
ly, with the majority, on conditions for the admission of 
Vermont. His committee reported on the 21st of August 
in favor of General Washington remonstrating against the 
protesting of the above bills and reporting the results to 
Congress. 

He was absent again late in August, but it was a common 
custom among delegates to relieve one another. Indeed, all 
the delegates of a State were rarely present during these 
continuous sessions of Congress in the old east chamber of 
the State House. There being no means of knowing when 
he returned, it can only be said that on September 12 his 
committee reported in favor of Superintendent Morris being 
authorized to fit out such ships of war as seem to him 
necessary for the public good, and it was passed.^ On the 
2 1st he voted on the losing side in favor of holding 
back certain hospital appointments until a report was had 
on the subject. Six days later, when one of the two new 
delegates from Georgia, Hon. Noble Wymberly Jones, took 
his seat in the old east chamber of the State House at Phila- 
delphia, Colonel Smith became acquainted with a man whose 
descendants were destined to become intimately connected 

^ This was pursuant to certain letters previously received from 
Mr. Morris on the subject. 



CONGRESS AND ITS FINANCES 143 

with descendants of his own in the years that were to come, 
but it is not known whether any especial friendship oc- 
curred between the two members at this time. 

It was October 5 before a matter came up that left 
record of Colonel Smith's personal action, although, of 
course, he, as well as others, was active in the great bulk 
of business in which members' names, of course, do not ap- 
pear. These divisions, however, tend to illustrate to a 
degree — at least so far as they can be understood at this 
distance — the relative character of the actions of men who 
happened to differ on the points at issue. Mr. Montgomery 
made a motion to allow the Pennsylvania and Delaware 
militia, in service, to disband, with provision for gathering 
at once, if necessary. Mr. Atlee and Mr. Clymer supported 
him, but Colonel Smith, with knowledge of the operations 
of the army in closing in on Cornwallis' army, felt that no 
risk should be run, voted against it, and proved to be 
with those who won. On October 15 the question of 
abolishing franks after the ist of December following won 
his vote, but he was overruled. In passing, it will be of 
interest to note that the question of claims to public lands 
came up, especially of the United Illinois and Wabash com- 
panies, whose agent was J. Wilson, and of the Indiana 
company, represented by William Trent; and on the i6th, 
although the Pennsylvania members, Atlee and Clymer, 
voted that these claims might be received, it was lost.^ On 
the 19th a Post Office Department was established, with a 
Postmaster-General. 

On the 23d occurred the unique event of a President of 
Congress resigning because he must perform his duties as a 
Chief Justice of a State, and although his resignation was 
accepted, he was unanimously asked to continue as long 
as he could. It was a week of vmique events, for on the 
next da}^ came General Washington's announcement of the 
surrender of Lord Cornwallis, dated the 19th of October, 
and at two o'clock Congress adjourned to the "Dutch 
Lutheran Church" to engage in thanksgiving. The next 
day, when it was proposed to direct General Washington to 
detain Cornwallis until further orders of Congress, a rousing 
majority voted against it. Colonel Smith among the number. 

^ Colonel Smith was not present. 



144 THOMAS SMITH 

Much of the work of the next several days was an echo of 
the surrender, such as the extension of congratulations and 
passing of resolutions of thanks to various parts of the army 
and navy. 

On November 2, however, the financial problems again 
came before them, for these were their chief business now, 
even more than before. An effort was made to add 
$93,400 to the quota of Connecticut for the $8,000,000 
ordered two days before, whereupon Colonel Smith voting 
against it, and also against Mr. Atlee and Mr. Montgomery, 
was one of a successful majority. On the reorganization 
of Congress on the 5th, Messrs, Montgomery, Atlee and 
Smith were in their places, but it was the 14th before a 
matter calling for division came up, this time being called 
for by Colonel Smith himself. It was on consideration of 
the claims to public lands of the Illinois, Indiana, Wabash 
and Vandalia companies, at a certain specified date, and he 
wanted an amendment to the effect that eleven States 
must be present. He wanted them considered, but in a fair 
way. The whole matter was defeated, however. On this 
day the Pennsylvania-Connecticut hearing was set for the 
fourth Monday in June, 1782. On November 16 an effort 
was again made to direct General Washington in certain 
details, and Colonel Smith joined a vigorous majority 
against it. The same day, on a vote construing a former 
resolution regarding promotions, he and Mr. Montgomery 
voted in the majority, saying that it did not prevent Con- 
gress from promoting as it pleased for extraordinary merit. 
Notwithstanding this, he voted against the promotion of 
Brigadier-General Knox to be Major-General. 

On the 19th he seconded a motion to ask Richard Peters 
to continue upon his duties until the Secretary of War was 
ready to assume office, and on the 21st he was one of a large 
majority asking the States to take a census. Across the 
hall, on this day, the Assembly reelected "the Honorable 
Joseph Montgomery, Thomas Smith (of the county of Bed- 
ford), George Clymer, Samuel J. Atlee and Henry Wyn- 
koop. Esquires," and on the following day, all but Judge 
Wynkoop attended Congress as usual, and he, too, at- 
tended later.i On the 22d, also, Mr. Montgomery and 

^ Minutes of the First Session of the Sixth General Assembly, 
1 781 -'84, p. 516. 



CONGRESS AND ITS FINANCES 145 

Colonel Smith secured the establishment of the post office at 
the beginning of the year, instead of December i. The 
28th was made notable by a visit from General Washington. 
He and Mrs. Washington had arrived on Monday, the 26th, 
amid great rejoicing, and Congress, the Assembly and 
Council, and indeed everybody, hastened to do them honor. 
The State House Square, at Sixth and Chestnut streets, was 
a scene of joy and gladness during that November day, in 
honor of the great Commander. The Gazette came out the 
same Wednesday, with a most interesting and appreciative 
sketch of the life of the General, which, curiously enough, 
was an English article, which had appeared abroad in the 
Westminster Magazine the previous August; the editor, in 
a foot-note, draws attention to the fact that " It is somewhat 
singular, that even in England not one reflection was ever 
cast, or the least disrespectful word uttered against him."^ 
The visit was treated as, in a degree, a celebration of the 
victory at Yorktown, by the capital and metropolis of the 
new nation. 

At one o'clock Congress was assembled at the old east 
chamber of the State House, forever famous for the birth of 
a new nation nearly five years before. General Washington 
entered and was addressed by the President, who, besides 
offering felicitations, expressed the hope that the General 
would remain some time in Philadelphia, and while resting 
from his labors, give Congress counsel in the reorganiza- 
tion of the army for the work yet necessary to be done. 
Colonel Smith, who was soon to become Washington's at- 
torney, and whose devotion to him was shown on many oc- 
casions, must have felt peculiar pleasure, as he listened to 
the General's happy response. "Mr. President," said he, "I 
feel very sensibly the favorable declaration of Congress ex- 
pressed by your Excellency. This fresh proof of their 
approbation cannot fail of making a deep impression upon 
me, and my study shall be to deserve a continuance of it. 
It is with peculiar pleasure I hear that it is the fixed purpose 
of Congress to exhort the States to the most vigorous and 
timely exertions ; a compliance on their part will, I persuade 
myself, be productive of the most happy consequences. I 
shall yield a ready obedience to the expectation of Congress, 

'^Pennsylvania Gazette, Wednesday, November 28, 1781. 



146 



THOMAS SMITH 



and give every assistance in my power to their committee. 
I am obliged by the goodness of Congress in making my 
personal ease and convenience a part of their concern. 
Should the service require my attendance w^ith the army 
upon the North river or elsewhere, I shall repair to what- 
ever place my duty calls, with the same pleasure that I re- 
main in this city." 

The day was a happy one for Colonel Smith for other 
reasons, also, for on the morrow he was to celebrate the 
happiest event of his own life. He had been a Congress- 
man about a year, in almost constant service, and was a 
comparatively young man of only thirty-six years. It has 
been intimated before that when he had been in the con- 
vention of '76 and the Assembly, as well as on other 
visits to the capital, he had not only been much at the 
country seat of his brother. Provost Smith, at the then 
beautiful Falls of Schuylkill, northwest of the city, but had 
also gone a little farther up that river to the far richer 
scenery of the glens of Wissahickon; and now one of the 
compensations of the arduous responsibilities of Congress 
was the opportunity it gave, during the past year, of visit- 
ing the daughter of John Van Deren, who owned a well- 
known old mill there, as General St. Clair did in the far 
West at his home at Ligonier. In a letter to his mother 
three years later. Colonel Smith, in telling of his various 
public ofBces, last of which he mentioned his membership 
of Congress, says: "Although the Public Offices which I 
have borne were not profitable; yet the last, by obliging 
me to remain two years in Philadelphia, gave me an op- 
portunity of often seeing a young Lady with whom I had 
been acquainted for some years." ^ The beautiful Wissa- 
hickon had no doubt been the scene of many a courtship 
before, as it has been since that of Congressman Smith 
and Mr. Van Deren's eldest daughter, Letitia, but it never 
witnessed a truer one. 

Dr. William Smith, since the Assembly had taken 
away what ought to have remained his life-work, had gone 

^ Letter dated Carlisle, December 3, 1784, addressed to his 
mother, "Mrs. Elizabeth Lawrence, in Cruden, Aberdeenshire, To 
tlie care of Dr. P. Smith at Slanes Castle." De Renne Papers, 
Wormsloe, Savannah, Georgia. Miss Van Deren was born in Octo- 
ber, 1759, and was now twenty-two years old. 




The Wissahickon 

Aiiiiil Scenes of Colonel Smith's Courtship 

Half-tone of Photograph by Ran 



CONGRESS AND ITS FINANCES 147 

to Chestertown, Maryland, where he was rector and head 
of the Kent County School, which was soon to become Wash- 
ington College. From there he came to Philadelphia for the 
purpose of solemnizing the marriage of his brother. ^ The 
ceremony occurred on Thursday, November 29. 1781, 
when the Wissahickon was robed in all its autumnal glory. 
Colonel Smith took a vacation, his place at the State 
House being temporarily taken by Judge Wynkoop. Little 
record of either wedding or honeymoon has been kept, 
but a far better one has been, namely, his own estimate 
of his wife, written to his mother in the letter above quoted 
after three years of married life. "To say she is beautiful," 
he writes, "would be saying little, for although she has a 
very large share of it, it will fade by age ; but the beauty 
of her mind is far superior to that of her person & that will 
increase with years — had [I] my choice of all the women 
in the world and had every one of these women all the 
Treasure in the world, I would most certainly (if my choice 
to make) prefer her to them all," and then in a burst of 
filial confidence so sacred that one bows before it, he ex- 
claims : "O my mother, I want words to paint my hap- 
piness, in the married state, to you — I want thoughts to 
conceive my gratitude for it — indeed it is too great to last 
— for it was not intended by our Maker that we should 
enjoy complete happiness in this world in which we are 
placed in a state of probation — my happiness is as great 
as I can conceive that of any human being can be; but it 
is not complete, for the thought that it is too great to last 
prevents the enjoyment of it. — I wish I may be grateful 
while it does last & resigned to the will of Providence if I 
should be deprived of it." 

How long a vacation Colonel and Mrs. Smith took 
after the wedding is not known, as the journals of Con- 
gress do not indicate the presence or absence of members, 
except when a division is called for, and there was nothing 
of that kind for some time. The second day after the wed- 
ding at Wissahickon, however, was notable in Congress as 
witnessing the incorporation of the Bank of North America, 
of which, it may be mentioned, James Wilson was a director. 

1 The very day of the marriage the Assembly read a petition of 
Dr. Smith, asking that justice be done him— and though long de- 
layed, it was yet to be done. 



148 THOMAS SMITH 

On February ii, 1782, Mr. Randolph, Mr. Boudinot and 
Colonel Smith reported on a memorial from James Wilson, 
who appealed, for his clients, against a sentence of the 
Court of Admiralty in Connecticut, and it was referred 
to the Court of Appeals. He took part in a vote on the 
19th, and also in one on the 23d on method of exchange of 
Cornwallis, in both of which yeas and nays were called for. 
On the 25th of February, on the motion to select May i as 
the date for excepting vessels carrying British goods from 
capture, he opposed his three colleagues and voted with the 
majority to secure an earlier date. 

On March i he took part in a long fight over Ver- 
mont and its relations to New York and New Hampshire. 
Naval affairs received much attention during these days. 
On the 14th he voted with the majority in favor of reduc- 
ing the pay of the Quartermaster-General to that of a 
Major-General, and on the 22d voted in the minority in 
favor of promoting General Moultrie, and with the major- 
ity for the promotion of General Knox. On April i the 
Vermont question came up again and was referred to a 
committee. On April 15 came up the question of a Vice- 
President of Congress. Colonel Smith objected to it for 
any given length of time, although he supported it as a 
measure during the indisposition of the President. On 
the next day the report of his Public Lands Committee 
was considered, though no conclusion was reached. On 
the 17th he took part in another vigorous fight over the 
admission of Vermont, with no conclusion, as he did on 
a similar contest on the public lands question the next 
day. Another, about the payment of Connecticut troops, 
also occurred. 

May I the public lands matter again came up, and, 
after a spirited fight, in which Colonel Smith was in favor 
of setting a time for its consideration, at which all the 
States could be represented, the yeas and nays were called 
to close the contest by adjournment. The report of this 
committee, of which he was one, was spread on the 
minutes, however, and is one of the most just papers ever 
placed before Congress. It recommended the acceptance 
of the cession of New York's western lands; asked Vir- 
ginia to make a new proposal making simple relinquish- 
ment of lands west of a reasonable boundary; recom- 




Mrs. Thomas Smith 

(Letitia Van Deren) 

Half-tone of miniature in possession of 

\\ . J. De Renne, Esq., Savannah 



CONGRESS AND ITS FINANCES 149 

mended the titles of Croghan's Indiana company as le- 
gitimate; denied the legitimacy of both the Illinois and 
Wabash companies, and recommended that Congress have 
future control of all relations to Indian lands, to settle- 
ment and to the creation of new States. On the 6th it 
was voted to postpone consideration of the question, 
plainly indicating that Congress considered this, as it 
really was, one of the most important questions before it. 

Several motions came up in which he took part in the 
next few days, in some of which he opposed efforts to pro- 
mote certain officers, but as the significance of the action 
is not known, it needs no further notice. On the 13th the 
French Minister was received. 

Colonel Smith, on June 3, moved and secured the re- 
consideration of the Public Salaries bill, which was before 
the House in May. This was evidently at the request 
of the Superintendent of Finance. On June 20 a seal for 
the United States was chosen. On the 24th the Con- 
necticut-Pennsylvania case came up, in which Attorney- 
General William Bradford, Joseph Reed, James Wilson 
and Jonathan Dickinson Sergeant represented Pennsyl- 
vania, On the 25th an effort was made to not allow dele- 
gates of the interested States to sit during the hearing ; but 
Colonel Smith and Judge Wynkoop joined a vigorous 
majority in opposing such a movement, and on account of 
the absence of certain agents of Connecticut the matter 
was postponed. On the 27th, however, the Pennsylvania 
delegates joined a majority in reconsidering the disquali- 
fication of delegates of interested States sitting at a hear- 
ing, although Connecticut objected. An effort was made 
to postpone the controversy until the war was over, but 
it was not successful. 

On July 16 the Pennsylvania-Connecticut controversy 
again came up, and as the agents of the latter State denied the 
validity of the powers of attorney granted by the Supreme 
Executive Council of Pennsylvania, Colonel Smith called 
for a test vote as to whether Congress should assure the 
delegates that it considered them valid, and Congress re- 
fused to commit itself. The case was allowed to proceed. 
After the preliminary hearing, however. Colonel Smith 
called for a test vote and their validity was acknowledged, 
and the agents of each State were directed to choose a 



150 THOMAS SMITH 

court, according to the ninth of the Articles of Confedera- 
tion. On the 19th no member of Pennsylvania was pres- 
ent, but three of them were there on the 22d, and voted on 
the retirement of General Parsons, on account of ill health. 
On the 26th Colonel Smith voted with the majority in 
favor of granting Baron Steuben travehng expenses. On 
the 31st another effort was made to get Congress to act 
on the public lands question, at least to set a date. Colonel 
Smith favored it, but it was lost. 

On August 7 he voted favorably on a measure of 
economy, recommended by a committee on the subject, 
and on the 14th voted with the minority against repealing 
the order for an investigation of General Gates. He voted, 
on the 20th, in favor of referring to a committee certain 
matters relating to a proposed treaty of peace. On the 
28th the court on the Pennsylvania-Connecticut claims 
was commissioned, to meet at Trenton on the following 
November 12. 

September 5 a committee on inquiring into the affairs 
of the post office reported. Colonel Smith being one of 
them. He also secured a resolution directing General 
Washington to use the Pennsylvania line as he deemed 
best, notwithstanding the resolutions of February 20 and 
March 19. The public lands question was called up again, 
but Colonel Smith, with the majority, objected — for all these 
efforts were contrary to the recommendations of his com- 
mittee. On the 6th, however, Dr. Witherspoon placed the 
intent of the committee's report in a short resolution and 
had it adopted. Colonel Smith, on the loth, secured a reso- 
lution calling for a Hst of all seamen captured or paroled. 
On the same day the quotas were reported, for payment of 
$1,200,000 for interest on the public debt, and various 
efforts were made to change the quotas, but he joined the 
majority in opposing any, until, apparently in good-natured 
mockery, he himself tried to get a part of Pennsylvania's 
quota placed on Virginia. This may have been because, for 
the first time, it is believed, the quota of Virginia was smaller 
than Pennsylvania, and his motion proposed to make them 
equal. The quotas were adopted as reported. 

On the 14th of September (1782) the matter of 
European loans came up, and he joined the majority 
in favor of instructing the various ministers abroad to 



CONGRESS AND ITS FINANCES 151 

conform strictly to the arrangement by which the con- 
trol of loans was placed in the hands of Mr. Morris; 
and he was with the minority on making a loan of 
$5,000,000, exclusive of the loan to be made by Mr. Adams, 
so that it was reduced to $4,000,000, exclusive of the 
Adams loan. On the 17th he voted with the majority in 
urging Adams, Franklin, Jay and Laurens to act as com- 
missioners to treat for peace with Great Britain. A 
division was also called for on the i8th on the destruction of 
old Continental money, excepting a certain quota of each 
State, as fixed by the Act of March 18, 1780; he voted 
with the winning side. On the 20th it became evident that 
certain of the Congressmen were not satisfied with Mr. 
Laurens' course and wished to rescind former actions for 
the time being. Colonel Smith, Mr. Clymer and Mr. Atlee, 
against Mr. Montgomery, were on the minority side, how- 
ever, and Mr. Laurens was retained. The public lands 
question was called up on the 25th, the main intent of the 
effort being to assure the States that if cessions were made 
by them Congress would respect all arrangements they had 
made, or not change them without the consent of the par- 
ticular State interested. Colonel Smith was in favor of this, 
but the motion was lost. 

On October 14 an effort was again made to promote 
General Moultrie, and date the promotion from September 
15, 1780. Colonel Smith voted for his promotion, but 
against the dating of it back of the day of voting it, and 
this was done. On the i8th a resolution authorizing Gen- 
eral Washington to retain or withdraw the post at 
Wyoming, Pennsylvania, was adopted, although Colonel 
Smith called for a division and voted against the motion 
— the only vote cast against it. His concern for the frontier 
led him to write the Council of Pennsylvania the same day. 
"Gentlemen," he writes, "By a resolution which is just now 
passed. General Washington is at liberty to continue or 
abandon the Post at Wioming, as he shall judge most for the 
public good, the former resolution on that subject notwith- 
standing — indeed the former resolution was optional with 
the General. But from his letter on this subject, I have 
good reason to believe that the Continental Troops will be 
withdrawn, unless a representation is made to the General 
of the apparently pernicious consequences of such a 



152 THOMAS SMITH 

measure. — I objected to any new resolution being passed at 
present: i. Because it was not necessary, the former resolu- 
tion leaving the matter to the discretion of the General. 
2dly. Because Harmony subsisted at present between the 
two contending States of Pennsylvania & Connecticut, 
which had not been interrupted since those troops were 
stationed there; But if they were withdrawn, either the one 
party or the other might get the exclusive Possession of the 
Post, and then it would be easy for the Party in Possession 
to raise obstacles to the decision of the dispute & pro- 
crastinate it to a dangerous length, and I ventured to predict 
that this would be done or at least attempted, and even 
should it be decided notwithstanding all attempts which 
might be made & prevent a determination and that de- 
termination should be against the Party in Possession, I 
dreaded the Consequences. 3dly. That this Post was the 
Keystone of protection to a great extent of the frontiers of 
Pennsylvania, and I was so unfortunate as to be decidedly 
of an opinion directly the reverse of that of the General, 
respecting the peaceable disposition of the Indians — and 
may Heaven grant that the event may prove my want of 
judgment on this point! and that countermanding the Ex- 
pedition may be followed by salutary effects! — I give the 
Council this information in order that, if they are of opinion 
there is any weight in my sentiments, they may make such 
representations to the General as they shall judge the good 
of the State may require. There is perhaps a necessity for 
removing the Troops there at Present, if they are so un- 
disciplined & their conduct is so irregular & unmilitary as 
represented ; but that operates only as a reason for their be- 
ing replaced by others & not for evacuating the Post. The 
Council will, I hope, excuse my officiousness on this occa- 
sion, and ascribe it to my anxiety for the Peace of the 
frontiers.'"^ 

On this same day, October i8, he voted with the ma- 
jority to recommend separate taxation for national supplies 
in each State. On the 29th, Congress accepted the cession 
of public lands of New York, Colonel Smith voting with the 
majority, although he voted with the minority on the right 



* The Pennsylvania Archives, Vol. IX, p. 652. The Council at 
once communicated with General Washington. 



CONGRESS AND ITS FINANCES 153 

of claims to be settled according- to the ninth Article of 
Confederation, without regard to this acceptance. 

He and the rest of his Pennsylvania colleagues had 
but a short service in the new Congress, which or- 
ganized on Monday, November 4, 1782. On the next day 
Vermont was declared to have fulfilled her part of the re- 
quirements for admission. On the 8th he voted with the 
majority on methods of retaliation by the army, and this 
proved to be his last participation in a call of the yeas and 
nays. He, Mr. Clymer and Judge Wynkoop had represented 
their State in Congress so far, because Mr. Montgomery and 
Mr. Atlee were standing for the next Assembly from Lan- 
caster, a campaign in which they were successful. They be- 
came prominent in the new Assembly, and as soon as 
President John Dickinson was elected and the organization 
fairly completed, new Congressional delegates were elected 
on the 1 2th of November, the last day on which Colonel 
Smith probably attended, for he was not present the next 
day, as was none of his colleagues.^ Their successors in 
Congress, who presented credentials on Monday, the i8th, 
were Honorables Thomas Mifflin, Thomas Fitzsimmons, 
James Wilson, John Montgomery and Richard Peters. It 
will thus be seen that Pennsylvania politics had experienced 
a great change when these vigorous anti-Constitutionalists 
could be sent to Congress. And so it had, for the new 
financial measures had won a great many friends to the 
anti-Constitutional or "Republican" element, and while the 
Constitution itself was not, for the time being, much dis- 
cussed for its own sake, it was plainly evident that now that 
the war was practically over and measures ripening for a 
signed peace, the old Constitutionalists were losing their 
power, and keenly realized it. 

The situation, from the Republican point of view, is ex- 
pressed in some rather lively irony in the supposed speech 
of "Mr. Bloodybones" in the Assembly, on the issue of a 
pamphlet by ex-President Reed.^ Referring to some of the 

^ In the remarkable collection of Simon Gratz, Esq., of Phila- 
delphia, are Congressman Smith's bills for services in 1782. The 
first is for the period froin April 21 to July 20, with "no day ab- 
sent," £136 IDS.; the second that for July 21 to November 12, inclu- 
sive, with three days' absence and mileage of 120 miles to Carlisle, 
£i6q ios. 

^ The Pennsylvania Gazette, February 19, 1783. 



154 THOMAS SMITH 

objects of attack he says : "The RepubHcan Society. — Auh ! 
Mr, Speaker, what a pity we abused this body of citizens 
for opposing the constitution; for in so doing we have 
taught them, by submitting to it, to take it out of our hands. 
Some people say our late worthy President set them an 
example of this kind of conduct. * * '■' The Directors 
of the Bank. — Auh ! Mr. Speaker, this bank is Hke the 
smell of burnt bones in our nostrils. It was this bank that 
kept our army together last year, by which means the 
Republicans, who instituted it, have run away with all the 
power and popularity of the State. * * * All those 
bigots of every religious society, who object to the sole and 
exclusive right of the Presbyterians to govern the State of 
Pennsylvania." 

With this situation and these results, Honorable Thomas 
Smith felt that his work had been accomplished, and now 
that he had given so long service to the public he might re- 
tire and devote himself to the practice of his profession 
and the care of a home. Heretofore he had lived at Bed- 
ford — a period of over a dozen- years, but that place was, in 
the opinion of Mrs. Smith, too far from her old home near 
Philadelphia, and her husband decided to at once make 
Carlisle their future residence.^ After he reached Carlisle 
he wrote his friend Congressman James Wilson a very in- 
teresting and characteristic letter, which may serve as an 
aftermath to his own Congressional service. As Wilson 
was not only his friend and successor, but to Mr. Smith 
had fallen much of the western practice of Wilson after the 
latter left Carlisle, the letter has a rare confidential at- 
mosphere. But it has a still greater value in that it bears 
the only known warning of a friend of that great states- 
man, that he — Mr. Wilson — was dallying with a specu- 
lative craze for western lands, which, had it been heeded, 
would have saved his great career from fear of a debtor's 
prison and a grave in a distant land, instead of beside his 
wife in Christ Church." 

"I wished, on many accounts," reads the letter,^ "to 

^ Letter of December 3, 1784, to his mother. 

''James Wilson is buried at Edenton, N. C. The time surely 
has come when an adequate monument to him should be erected at 
the scene of his great work. 

'Dated Carlisle, December 9, 1782. It is quoted through the 
courtesy of Thomas H. Montgomery, Esq., West Chester, Penn- 



CONGRESS AND ITS FINANCES 155 

have seen you before I left the City, as I had a great deal 
to have said to you upon business, both pubHc & private; 
but you were so assiduously engaged in sowing the spot 
from which you are to reap a golden Harvest, that I had 
no opportunity, after you was appointed to that Station, 
in which I could freely converse with you, without de- 
grading my then dignity.^ — Take care that Trenton don't 
engross too much of your attention, for I never yet knew 
or heard nor read of any Man who was remarkably emi- 
nent in any Science or Profession, who did not prove a 
Novice to his own loss, when he neglected that & betook 
himself to any other, unconnected with the former — the 
causes are obvious — he applies the same maxims and rules 
to both & his success in the former makes him too san- 
guine that he will succeed in equal degree in the other ; 
of consequences he despises the plodding conduct of 
others, & thinks he has, or can easily be persuaded that 
he has, found out a shorter road to success. — This, you 
will say, may possibly be a sincere, but certainly not a 
very polite method of displaying friendship — this is the 
least you will say should you be in a good humour ; but 
should the nefarious arts of any of the Skunks have ruf- 
fled your temper, I will come well ofif, if you only say 'this 
fellow presumes too much on his long acquaintance with 
me, I don't like such freedom' — well then, as soon as you 
have recovered your good humour and forgotten my 
offence, which you may perhaps do in six or twelve 
months, I wish you to write to me in detail respecting 
your business at this Place & your Papers relating to that, 
& also your business & Papers in Bedford & West- 
moreland, as several People in the last named county have 
desired me to procure the Papers which they left in your 
hands, a list of which I have in Bedford, and for which 
some of them are impatient." 

sylvania, who possesses many of the papers, as well as the miniature 
of Judge Wilson. There are no descendants in this country. 

^It will be remembered that Mr. Wilson represented some of 
the claims to Western lands, a subject which was in a very sensi- 
tive state in Congress. Mr. Wilson had been made the leading at- 
torney in the Connecticut claims case, which was now on before a 
special court at Trenton — a place where other claims to land were 
tried also, so it stood, as used in this letter, for Mr. Wilson's spec- 
ulation in land. 



156 THOMAS SMITH 

"As this of itself," he continues, "would be a long, dry, 
dull narrative, embellish it here & there with an Episode 
of Politicks, and a delectable description of the Trans- 
actions of the Skunk Association.^ — Does Arundo begin 
to winch? I have just seen the Letter from the Member 
of Assembly.^ — By the Style, I guess it to be the pro- 
duction of J. M. of last winter — there are some exception- 
able paragraphs in it; but I am much pleased with it in 
general. — The facts are justly & well stated — the obser- 
vations poignant & pertinent. — These People will not let 
the State enjoy a moments Peace — they resemble the 
fallen Spirits in Milton and what they could not regain 
by force, Satan will attempt by stratagem : curse on their 
system to divide and inflame the minds of the People, it 
has sunk the State below its importance in the Union, and 
has had the most pernicious effects on the Common Cause. 
— It is difficult to say whether their wickedness or their 
weakness has been the most conspicuous. — The good 
Providence of the Supreme Being is in no instance more 
apparent, than in that he generally deprives those whom 
he permits to be villains, of their senses, and in mercy to 
mankind & even to them recoils their villainy, & makes 
it the means of their punishment in this life. I don't know 
if this be orthodox Divinity or not — ask Dr. Weazel — I 
should not have introduced it, had I not observed that it 
is become the fashion to appear religious — Seriously the 
Proclamation has too much Mystical Divinity in it^ — I 
wish it may not do the Author more hurt than good in the 
eyes of the most intelligent part of the community, as the 
Skunks will not fail to turn it to his disadvantage, and 
even I, were I as much his enemy as I am sincerely his 
friend (because I think the State will have reason to re- 
joice in his Administration) could excite the laugh, if not 
the contempt of the multitude, at his expense. The State 
goes out of its line, if it intermeddles with any other than 
the moral part of religion — your sentiments have deserved 
weight with him — caution him against stooping to those 

^This malodorous animal seems to have been the favorite em- 
blem of the opposition for both sides, as it is used in Judge Bryan's 
son's report to his father on the pohtical situation at a later date. 

"The Pennsylvania Gazette of December 4, 1782. 

*By President Dickinson in the Gazette of November 27, 1782. 



CONGRESS AND ITS FINANCES 157 

arts, which he has abilities to make him superior to — to 
which the weakest and wickedest men are comp[et]ent, 
and never fail to resort. If he trusts to his own superior 
understanding and worth, and the support _yvhich he will 
by them receive from the best and ablest Men in the State, 
he will triumph with dignity, which I do most sincerely 
wish. — Whenever I begin Politicks, I am like a Horse, or 
perhaps you will say, an Ass, running a race, I cannot 
stop when I please. 

''I wish for a long Letter of business from you," 
he adds in a paragraph humorously descriptive of Mr. 
Wilson's chief opponent at the trial at Trenton, Hon. 
Eliphalet Dyer, the leading counsel for Connecticut and 
member of Congress, "and therefore beg leave to point 
out the most proper time to compose it. — Suppose we 

then that Mr. D r is upon the floor — has pulled up 

his Breeches — surveyed his Shoe-Buckles with great ac- 
curacy, and has spit first at one side and then at the 
other — has addressed the President and then taken an- 
other look at his Buckles — suppose that you are sitting at 
your ease & looking at him through your spectacles, like 
a Surveyor through a compass, with a good natured 
smile upon your countenance, so that all the House may 
see what excellent & white teeth you have — take a quire 
of paper and devote two or three hours to me, while he 
entertains the House with his intelligent, melodious and 
well arranged oration — which, by the time that you have 
finished the quire, he will be drawing near the conclusion 
of, and you will hear the recapitulation, in which a great 
orator never fails to bring the whole argument to a focus, 
and it is very probable he will, in the last sentence, inform 
you whether he be for or against the measure then in dis- 
cussion, which your dull apprehension would not other- 
wise have enabled you to discover, had you listened all 
the time, in which you have written a long, elaborate 
letter. 

"I promised to give the Bearer a sketch of all your 
characters — that of each in one Line, but in spite of my- 
self, I took up three with the first and by the time I had 
got half through the House, I found half a side too little 
— I then left ofT, for which some of you will not be sorry, 



158 THOMAS SMITH 

although most of you might have Hked a continuance well 
enough.^ 

"Will you let one of your young Gentlemen Transcribe 
the case in 3'"'^ Wilson 149? I have the recital well writ- 
ten; but to entitle it to be read as an authority I must 
have the whole ; besides, I do not know that the point of 
Law determined in the principal case is in any of the 
Books extended any further than Ejectments & to Ex^^. 

"Do me the favour to Present my Compliments to the 
President & to your Colleagues: I hope General Mifflin 
is so far recovered as to be able to attend — the People 
have great expectations, founded on your abilities and 
integrity, and are under no apprehensions that you will 
veer v/ith every gale or blast of wind. I am, with much 
esteem your very humble Servant 

"THOMAS SMITH 
"Carlisle, DeC" 9th, 1782 

"P. S. 12. As the Bearer did not begin his journey at 
the Day he expected, I have given the Letter before 
alluded to a more deliberate perusal, and have discovered 
more & greater beauties, & fewer & less faults than ap- 
peared at the first reading. And when I consider the Per- 
son -from whom & the Person to whom it is supposed to 
be written & on whom it is meant to operate, I think it an 
excellent performance and am of opinion that if it is gen- 
erally circulated among the People it will have more influence 
upon their minds than if more art had appeared in the com- 
position, & will eradicate the poison instilled by the Free- 
holder — Judge Wasp," in Letters which I have heard he 
has written to The o-l d General^ &c, exults that the 
Proclamation* has been taken no notice of in Philada, & 
that no addresses have been presented nor talked of in 
consequence of it." 

^This sketch has unfortunately i.ot been preserved, so far as 
is known. 

" Probably Judge Bryan. 

■'' Probably intended to represent a drawl. 

* By President Dickinson. There never was a time Vi'hen rabies 
scribendi was more prevalent in Philadelphia than at this time. The 
papers were filled with anonymous articles, many of which were 
able and some hilariously pungent. They were both local and na- 
tional. Wilson was said to be among the writers. 



CONGRESS AND ITS FINANCES 



159 



With this aftermath, leave may be taken of Mr. Smith's 
long and useful Congressional service and public Hfe He 
had left his private duties for public ones, in the time of 
need; now he would lay down the latter and take up the 
broken threads of his profession for the rest of his Hfe so 
far as he then knew. "Soon after my last Letter," said' he 
in speaking of this period in the letter to his mother two 
years later,i "the War commenced between the two coun- 
tries, which ended in their Separation and the Independ- 
ence of America— altho' I was in Possession of Profitable 
offices under the Government, yet I took a decided part 
in favour of the Land I live in— I was early chosen Colonel 
of a Regiment of Militia— then was chosen a Member of 
our Assembly under the old Government— then a Member 
of the Convention which framed the New Government— 
twice a Member of Assembly under the new Government 
& lastly, a Member of Congress— these offices were more 
honourable than profitable to me, nor was my Pride, Vanity 
or Ambition gratified by them— I did not seek but I could 
not shun any of them— it is a pleasing reflection to me that 
I gave general satisfaction in them all, which was as much 
beyond my expectation as my merit— many have I known 
who possess far superior abilities and yet have failed— I 
have been for these two years returned to private life (so 
far as my Profession can be called private) and it will be 
contrary to my inclination, if I am ever appointed to a 
public Station again— the highest public offices have no 
charm for me — if there are honours attending them I 

have had my share— if burthens, I have borne my part' 

my choice is a private Station, in which I can more warmly 
feel & better express that great gratitude which I owe to 
that beneficent Being, the Supreme Governor of the uni- 
verse, who has made all my undertakings to Prosper & 
has enabled me to perform the duties to which I have 
been called." 

^ Letter of December 3, 1784, before mentioned. 
In another part of this letter he says : "During the War I was 
constantly in one public station or another, and had not leisure to 
attend to my private business." 



IX 

A Leading Land Lawyer of Pennsylvania 

1783 

When the Honorable Thomas Smith retired from Con- 
gress in November, 1782, he resumed a practice which had 
already covered over ten years. Notwithstanding the dis- 
tractions and irregularities of war, his personal docket of 
cases at Bedford alone shows him to have had within two 
of two hundred cases from the January term, 1772, to and 
including the April term of 1782.^ There is some evidence, 
also, that the docket omits some cases during the period 
of greatest disturbance in Bedford, for, while it gives him 
no cases in 1777, the court docket gives him three at the 
October term; 2 so that he had over two hundred cases in 
the Common Pleas Court at Bedford alone. He appar- 
ently had but two cases in 1772, and in 1773, when he be- 
came Prothonotary, had but three. During the rest of 
the time he held that office he had but six cases in '74, 
six in '75 and three in '76, according to his personal 
docket. He gives himself no cases in 'jy, while the con- 
test for the Prothonotary 's records was being made by 
Robert Galbraith, and in '78 records but eight cases. The 
next year, however, the record is kept more carefully and 
detailed, and indicates thirty-one suits. This is more 
than doubled in 1780, when they reach sixty-six, while the 
following year shows fifty-six, and the first two terms of 
'82 show seventeen. 

When he began in January, 1772, there had apparently 
been but ten attorneys admitted since the organization of 
Bedford court, April 16, 1771. These were Robert Magaw, 

^Thomas Smith's "Bedford Docket to 1782," in the possession 
of C. P. Humrich, Esq., Carlisle, Pa. 

" Common Pleas Continuance Docket at Bedford, Pa. This 
office apparently kept only the continuance docket; it is well known 
some kept but one. 

160 



A LEADING IvAND LAWYER i6l 

Andrew Ross, Robert Galbraith, Phillip Pendleton, David 
Sample, James Wilson, David Grier, David Espy, George 
Brent and James Berwick.^ Of these Galbraith and Wil- 
son had the most of the practice. At the January term, 
1772, Mr. Smith appears in No. 10, his first case, with 
Wilson, against Sample and Galbraith. At the April term 
Wilson, Hamilton and Smith appear against Galbraith and 
Berwick, and there was a case in which Attorneys Espy, 
Galbraith, Woods and Hamilton had Wilson, Smith, Dun- 
can and Riddle as antagonists. According to the court 
docket, he was associated with Wilson in a suit at the 
July term, although his personal docket makes no note 
of this. Cases like these raise the query whether or not 
"Smith" might not mean Colonel James Smith of York 
or Carhsle, but as the record does not distinguish, and as 
Thomas Smith is always indicated in this way in cases 
known to be his, one must incline to the belief, as has been 
suggested, that the personal docket was not fully kept, and 
may have included only cases of long continuance. At 
the October term of '72 he appeared in an ejectment case 
with Espy, against Sample, and another in which Espy 
was pitted against Smith, Wilson and Galbraith. There 
were two other cases of that kind that term. 

In 1773, when he became Prothonotary, he began with 
a case in the January term, in which he was with Wilson 
and Espy, against Galbraith, Ross, Magaw and George 
Woods. At the July term, before Judges Dougherty, St. 
Clair, Proctor and associates, he was in two cases, and at 
the October term in one with Wilson. These indicate the 
men before and with whom he practiced in these earlier 
years at the Bedford Common Pleas Court. So far as 
Bedford is concerned, he seems to have been too busy 
for much practice in '74, '75 and '76, and there was little 
done in ^yy, although, of the four cases at the October 
term, he was engaged in three. 

On April 14, 1778, however, after the Prothonotary 
difficulty was settled and he, David Sample, George Brent. 
Samuel Irwin, George Woods and David Espy were re- 
admitted under the test oath, there were twenty-eight 
cases brought up, in just half of which he was engaged 

^Bedford Common Pleas Docket, No. i, back part. 



i62 THOMAS SMITH, 

either alone or with other counsel for either the plaintiff 
or defense. At the July term he had twenty-three out of 
the thirty-seven cases, and he was easily the leading at- 
torney from that time on in this court at Bedford. For 
example, at the April term, 1779/ of eighteen cases before 
the court, he was engaged in all but one, no other lawyer 
making any approach to equality of practice, although 
Woods and Galbraith had more than any other attorneys. 
At the July term he was in every one of the twenty-five 
cases, while at the autumn session he had fourteen out 
of twenty-two. 

The year 1880 showed similar result. Of fourteen suits 
at the January term, twelve engaged his services, and 
seventeen out of twenty at the April session, a record ex- 
actly duplicated, also, at the summer meeting. The 
October term had eighteen cases, of which he had eleven, 
a reduction due, no doubt, to his election to Congress in 
November. He did not give up his practice entirely even 
then, however, for, like Robert Morris, he probably re- 
fused to break private engagements, when it was not abso- 
lutely necessary for the public service, as it was not in his 
case. The continuous sessions of Congress, however, 
made it necessary for members to relieve one another, and 
no member for Pennsylvania was present a greater pro- 
portion of his time than the one from Bedford. 

In 1881, while he was in Congress, his friend, Mr. 
Woods, took the larger share of the practice, but even 
then he had fort3^-three of seventy-four cases up during 
the year. The proportion was still smaller in his next and 
last year in Congress, Mr. Woods taking most of the one 
hundred and fourteen cases, Mr. Smith reserving but 
thirty-four for the entire year. This brings his practice, up 
to the date of his settlement in Carlisle, late in November, 
1782, so far only as concerns the Court of Common Pleas 
of Bedford county, the most elementary and simple court 
of that county before which he practiced. As has been 
indicated before, it was a bench made up of laymen, of a 
high character, to be sure, but still laymen, the old Justices 



* From this date onward until the July term of 1791 the analysis 
is made from an exact transcript of the dockets made at the request 
of the writer by E. H. Blackburn, Esq.. the present Prothonotary of 
Bedford. 



A LEADING LAND LAWYER 163 

of the Peace or "Squires" of the various settlements of 
the county. 

Bedford county Common Pleas was not the only 
Common Pleas tribunal in which he was an advocate or 
counsel. It has been seen that he was admitted at York 
as early as 1774, and his own words tell of his member- 
ship of the bar of Westmoreland as early as April of the 
same year, and he appears there at the April term in 1781, 
making the motion for the admission of Hugh Henry 
Brackenridge.^ The next year, after the Washington 
county Court of Common Pleas was organized, he was 
admitted there, also.- The only remaining county in that 
region was Cumberland, where the first record of practice 
in the Common Pleas was at the July term of 1779, where 
"T. Smith" was associated with "Noarth" or George 
North, who was admitted at that term.^ Mr. Smith was 
admitted there in April, 1778. At the October term he 
appeared, also, as counsel for his brother. Dr. William 
Smith, and in 1781 "Th. Smith" appears at the April term 
and "Thos. Smith" and Hamilton are pitted against Jasper 
Yeates at the October term. In January, 1782, he is 
curiously recorded as "Smith, Jr.," for the plaintiff, op- 
posing Mr. Yeates again. This is to distinguish him from 
the much older Major James Smith, who had long been 
known as a man, soldier, statesman and lawyer through- 
out Pennsylvania. ^ 

Whether he practiced in other local Courts of Common 
Pleas in central Pennsylvania does not appear. Such lists 
of admissions as are accessible for Lancaster county do 

^ Albert's History of Westmoreland County, p 330. Mr. Albert 
could find no record of admissions back of January 5, 1779. Ap- 
parently Mr. Smith did not seek admission in Lancaster, for hi-s 
name does not appear in Leaman's list of admissions in Ellis and 
Evans' History of Lancaster County, p. 245. 

- He was the first one admitted at the January term, 1782, and 
fourth since organization of the courts, Brackenridge being the first. 
Crumrine's "Bench and Bar of Washington County," p. 203. Justice 
Coulter, so late as 1836, at Greensburg, while speaking of the year 
1782, said: "Thomas Smith, Esq., afterward one of the Judges of 
the Supreme Court, brought quarterly from the East the most ab- 
struse learning of the profession to puzzle the backwoods lawyers." 

* Franklin was a part of Cumberland until September 9, 1784, 
when it was organized, but the destruction of its early records in 
the fire of 1864 'makes it impossible to treat of his work either as 
lawyer or Judge in that county. 



i64 THOMAS SMITH 

not indicate that he was admitted there at all, at least for 
this court. It is perfectly natural that his visits to Phila- 
delphia should make practice there feasible, and Mr. 
Martin's list shows his admission to have been as early 
as the September term, 1777, with a probable readmission 
on November 16, 1786. It is known, also, that he was 
admitted in other county courts, but these examples are 
sufficient to illustrate the extent of the main part of this 
local Common Pleas practice previous to his settlement 
in Carlisle late in November, 1782. 

That Thomas Smith had a general practice is, of 
course, true, but it was so largely dominated by civil cases, 
and especially those in relation to land and other real 
property, that other branches of it are a comparatively 
negligible quantity. He was preeminently a land lawyer. 
His knowledge of land titles and precedents, growing out 
of his life as a surveyor, in a region and at a time when 
settlements on and transfers of land were so common, 
made his services in especial demand in that line. Conse- 
quently, when his cases grew more important than the old 
Justices' Common Pleas could ordinarily settle, they were 
taken to higher courts. 

As every lawyer knows, higher causes than could be 
handled by the old Justices' Common Pleas were tried under 
special commission or regular sessions of the Supreme Court 
ever since the act of 1722, an act that closed the old-time 
judiciary contest in which the then Chief Justice David 
Lloyd gave form to the judiciary system of the Province. 
There was no material change in the system for nearly a 
half century — forty-five years, to be exact. As settlement 
began to increase, however, inhabitants to the west and 
north began to find trips to Philadelphia a burden, and 
this, with the organization of new counties, led to a de- 
mand, such as has been seen in recent years for a Superior 
Court, for relief courts. This culminated in the act of 
May 20, 1767, passed the year before Thomas Smith left 
London, and entitled "An Act to Amend the Act intituled 
An Act for Establishing Courts of Judicature within this 
Province."! This provided that Judges of the Supreme 
Court should hold stated Circuit Courts twice a year in 

^ Galloway's "Acts of Assembly," 1775, Chapter XIII, p. 338. 



A LEADING LAND LAWYER 165 

each county, and courts at times accommodated to the 
special needs of each county, called Nisi Prius — both of 
which were purely relief courts to meet needs caused by 
the Justices' Courts being unlearned in the law and the 
physical limitation of a Supreme Court of only three mem- 
bers, or four, at most. 

The courts of Nisi Prius, as they were called, were of 
English origin, and grew out of similar needs in Great 
Britain. A summons was always issued for the West- 
minster bench in civil cases of a certain character, among 
which may be mentioned ejectments, trespass, etc., with 
the provision nisi prius, or "unless before" tried, when 
Judges came to the local seat of justice. This provision, 
expressed in the Latin phrase nisi prius, gave not only 
name to these relief courts, but also to the character of 
practice which naturally grew up in them. By virtue of 
the accommodative character of these courts, they became 
favorites with the people, and when Thomas Smith began 
practice in 1772, they were the chief courts into which 
a practice like his naturally gravitated. These courts were 
preserved by the Constitution of '76^ and the act of Janu- 
ary 28, 1777, to revise and put in force late laws of the 
Province, and they were not changed until long after he 
ceased to appear before the bar. The records of these 
courts were kept by the court and carried with them to 
the old State House, where, unfortunately, they for the 
most part long since disappeared.^ So that, although we 
know that far the greater part of Mr. Smith's practice 
was long in these courts, we are almost entirely without 
the court records in which it might be analyzed, although 
there are some interesting resumes left by Mr. Smith him- 
self, some time after he settled in Carlisle, in 1782. 

^ Section 26, Constitution of Pennsylvania of 1776, McKean's 
"Acts of General Assembly, 1782," p. 17; also Chapter II, p. 4, 
Section 4 of Act of January 28, 1777, entitled "An Act to Revise 
and Put in Force such and so much of the late Laws of the 
Province," etc. 

^ A few of these Nisi Prius records of the work over the State 
were saved from destruction by members of the Genealogical Society 
of Pennsylvania, when the courts were removed from the State 
House, and carefully preserved at the rooms of the Pennsylvania His- 
torical Society. The earliest paper of a case by Mr. Smith is one 
tried in April, 1782, but they are few and fragmentary. The writer 
knows of no records of this period in the Prothonotary's office of 
the Supreme Court at Philadelphia. 



i66 THOMAS SMITH 

Of his practice in the regular sessions of the Supreme 
and Circuit Courts under the administration of Chief Jus- 
tice Allen before the April term, 1774, when Chief Jus- 
tice Benjamin Chew and Justices John Laurence, Thomas 
Willing and John Morton began their brief service on that 
bench, or under that of Chief Justice Thomas McKean 
and Justices William Augustus Atlee and John Evans, 
which began with the September term, 1778, there is much 
the same difficulty, with the added disadvantage of the 
records, as a rule, not distinguishing between the indi- 
viduals who bore his not uncommon name. Smith. It is 
probable, however, that there was not a great deal outside 
of the Nisi Priiis sessions of the Supreme Court before 
November, 1782, when he made his home in the Cumber- 
land Valley. 

When Mr. and Mrs. Smith decided on Carhsle, instead 
of Bedford, as their future residence, they had, for one of 
the features of their new home, a baby girl, born on August 
21 of that year, 1782, and named by Mrs. Smith, in honor 
of her husband's mother, Elizabeth, although throughout 
life the daughter omitted the last syllable of the name.^ 
Carlisle, which had long been a peculiarly important and 
cultivated place, welcomed the new family of the ex-Con- 
gressman. The beautiful valley, hemmed in on either side 
by low mountain ranges, had attracted the attention of 
the old French-Swiss trader and interpreter, Le Tort, a 
half century before. Next to York and Shippensburg it 
was the oldest settlement west of the Susquehanna river. 
It was laid out in 1751, soon after the creation of the 
county, and at once became a military post of great 

^ Eliza Smith, when the years of womanhood came, married the 
son of Hon. Noble Wymberly Jones, of Savannah, Georgia, Dr. 
George Jones. Dr. Jones was himself prominent in Georgia political 
life, and served as both Judge of the Superior Court for the Eastern 
Circuit of that State and as United States Senator. His own son, 
George Wymberly, a man of scholarly tastes, whose love for beautiful 
editions of books led to his operating a private plant on his estate, 
with such results that the "Wormsloe editions" are well known to 
rare book lovers, educated his family in France after the Civil War, 
and added to his name a French modification of his grandmother's 
name, Van Deren, and became known as G. W. J. De Renne. Mr. 
De Renne's son, Wymberly Jones De Renne, Esq., who has prob- 
ably the best historical collection on Georgia yet made, lives at the 
old estate of Wormsloe, at Savannah, which has been in the family 
since the first ancestor, who came over with Oglethorpe. 




Court House at 

Carlist.e, 

in whiL-h 

Thomas Smith i^racticed 

and sat as Judge. 

Half-tone from cut in 

Day's Historical 

Collections 



A LEADING LAND LAWYER 167 

Strategic value— and it has remained a favorite with the 
military element ever since. The old High street, or Main 
street, with a central quartered pubHc square, dominated 
the rectangular arrangement of the town. The old court 
house, except a part of the cupola and clock, had been 
built on the southwest quarter of the public square, about 
two years before Mr. Smith left London.' It faced the 
public market on the southeast quarter, while on the re- 
maining quarters were, respectively, the Presbyterian 
Church on the northwest and the Episcopal Church on 
the northeast, with the latter of which, no doubt, the 
Smiths were identified.' It is not known where either 
his home or his office was located, although because 
masses of his old papers were found in the basement of 18 
West High street, a few doors west of the court house, 
it is believed that was the site of his office and possibly of 
his home, also.^ Of course, it was a small place, for 
although it had been incorporated on April 13, a few 
months before he settled there, it was estimated at only 
about 1,500 people over a decade later.* 

Before he had been a resident of Carlisle a year a 
project, which had long been under consideration, came to 
fruition, namely, to establish a college in the mountain re- 
gion. Dr. Benjamin Rush and President John Dickinson of 
the Council seem to have been most active in its establish- 
ment.' Mr. Smith became one of its first trustees, and 
their first meeting was held at the home of President 
Dickinson, in Philadelphia, on the 15th of September, 
1783, one week after the charter was secured. The in- 
stitution was named in honor of the President of the 

^ The cupola and clock were not added until the year of Mr. 
Smith's death, so that the picture here given from Day's Historical 
Collections, p. 264, represents the building Mr. Smith knew with 
these slight exceptions. As will be seen, its door was on the side, 
facing east, and the structure stood full out to the corner of High 
and Hanover streets. Judge Edward W. Biddle, who has made a 
study of the matter, says the Hanover street, or east frontage was 
68 feet, with a depth of 44 feet — a curved projection on the rear 
adding 22 feet to this. 

^ The church has no records of that period. 

' The papers were found by C. P. Humrich, Esq., Carlisle. 

■'Bellman's sketch of the borough, published in 1886, in "The 
History of Cumberland and Adams Counties." 

° A sketch of Dickinson College, Carlisle, Pa., by Charles F. 
Himes, Ph.D., 1879, p. 15. 



i68 THOMAS SMITH 

State — who also became President of the institution — 
Dickinson College. Among others of the forty trustees 
were James Wilson, Dr. Rush, Rev. Dr. Henry E. Muhlen- 
berg, Thomas Hartley and William Bingham. It was 
April 6, 1784, before they met at Carlisle and organized 
the faculty, electing as head of the institution Rev. Charles 
Nisbet, D.D., of Montrose, Scotland, whom Dr. Wither- 
spoon had recommended to Dr. Rush fifteen years before 
for the College of New Jersey, now Princeton University, 
before Dr. Witherspoon himself accepted the Presidency 
of the latter institution. The college was opened in a 
small two-story brick structure with four rooms, near the 
corner of Bedford street and Liberty alley, and so con- 
tinued for nearly twenty years, or long after Mr. Smith 
left Carlisle as a home. 

"We expect that Dr. Nesbit of Montrose will sail for 
this Country in the Spring," said Mr. Smith late that year 
in a letter to his cousin. Dr. Peter Smith, at Slains 
Castle,^ "as he is appointed Principal of a College lately 
established in the town in which I reside: — from the ex- 
cellent character which I have heard of that Gentleman, 
it will give me much Pleasure if he will accept the invita- 
tion. It appears by a long Letter recently written by him, 
which I read last week, that he is a very sensible Man, 
acquainted with Men and Manners. The Letter I allude 
to is a private one to his correspondents — there is a 
number of Questions respecting the College: Had I the 
Pleasure of being acquainted with the Dr. I should think 
it incumbent on me to give him the most explicit answer 
to every Question & a very minute state of all matters 
respecting this infant seminary. — I take it for granted his 
correspondent will do this — I wish that all things may be 
to his satisfaction, for, much as I wish him to come over, 
it would give me great pain, if he should leave his native 
Country at his Time of life, & be disappointed in his views 
& expectations in this. — If you are acquainted with Dr. 
Nesbit, & if he should sail in the Spring I hope you will 
oblige me with a Packet from my Mother & all my friends, 
by him." 

After six years of struggle for the institution, Dr. Ben- 

^ Letter of December 3, 1784, among the De Renne Papers. 



A LEADING LAND LAWYER 169 

jamin Rush, his family physician, writes Mr. Smith a letter 
which, while suggesting the various difficulties, pays an 
unmistakable tribute to the latter's services for the young 
college.' "Your zeal in behalf of our College," he writes, 
"has long ago, and often, excited my warmest regard. Your 
last letter is a recent proof of your friendship for our 
mutual charge. I have devoted myself to the business you 
have committed to me — but I am sorry to say that hitherto 
my prospects of success are not very encouraging. The 
College of Philad^ have lately presented a petition to the 
Assembly similar to ours, praying for funds. This event 
has a favorable aspect upon our Application, for it will 
probably bring about a Union of the city & country inter- 
ests in the Assembly in favor of both institutions. 

"The principal difficulty in the way of our success," he 
continues, "arises from prejudices entertained against Dr. 
Nisbett. His Conversation & letters are so very illiberal 
& so public against the College — the town of Carlisle — 
and every thing that is American, that the very name of 
the College is unpopular with many people upon his ac- 
count. I would have excused his neglect of me in his late 
Visit to Philad'* had it not encreased established prejudices 
against him, — for no one in our city believes him when he 
accuses me of the want of friendship to him or to the 
College. It would be happy for his character as a moral 
& religious man, if he stopped with this Charge against 
me. But he has made others against me which are equally 
false & malicious. Poor man! I pity him — and wish him 
— as the best means of promoting his own happiness, and 
the honor of the College — a more Christian Spirit. 

"Be assured," he adds in closing, "I shall not be idle 
during the remaining part of the session of the Assembly. 
The same views which I had in 1782 of the importance of 
a seminary of learning at Carlisle still continue to actuate 
me — and however much I have suffered, or may sufifer, 
from my attachment to it, I hope I shall never exhaust 
my zeal in promoting its interests. I knew too much of 
the human heart before I embarked in its service to be 

^ Letter from Dr. Benjamin Rush to "Thomas Smith, Esq., at 
Carlisle," dated Philadelphia, February 26, 1790. 



I70 THOMAS SMITH 

disappointed or offended by the persecutions of Dr. Ewing 
of Dr. Nisbett. Neither of them can now move me."^ 

Mr. Smith remauied a trustee of Dickinson College all 
his life, and during this decade or more of residence in 
Carlisle he was especially devoted to its interests. He 
was influential, too, for by this time he was recognized 
not only as Wilson's successor in central' and western 
Pennsylvania, but as the leading land lawyer of the State. 
A glance at his work in the Common Pleas Courts of Car- 
lisle and Bedford alone will serve as an introduction to his 
own statement at the close of 1784, after two years' work 
following his settlement at Carlisle. Although he was 
but thirty-eight years old, he was so much younger than 
Major James Smith of the Carlisle bar that he is, after 
the first year, generally spoken of in the records as 
"Smith, Jr.," and the elder attorney as "J. Smith." He 
began to have a very large practice as the year 1783 
passed. It is interesting to note, too, that during this 
year the Carlisle court made the rule that applicants for 
admission must be of age, have had three full years as a 
clerk in a law office, and be examined in detail by two 
gentlemen appointed by the court. If one began study, 
however, after he was of age, two years of clerkship would 
suffice. This was in the days when the office was the law 
school, and Colonel Thomas Smith's office was one of 
them. Among his ablest rivals at this bar, in amount of 
practice, were Hamilton, Duncan, Yeates, Magaw, Steel, 
A. Wilson, Hartley, Chambers and Major James Smith. 
At the October term, 1783, he had a case in which he was 
pitted against Major Smith.^ During 1784 his practice 



^The College of Philadelphia had been restored to its former 
estate, with Dr. William Smith as Provost again, and it now stood 
as a rival to the new University which had attempted to supplant 
it, and which formally united with it the year after this letter was 
written. Dr. John Ewing was Provost of the University at this 
time, and became the head of the united institutions about two years 
after the restoring act. So Dr. Smith had a victory, but a very 
short enjoyment of his restored Provostship. The restoring act was 
passed March 6, 1789. Dr. Nisbet remained President of Dickinson 
College until his death in 1804. 

^ It is amusing to note the slips in the record, occasionally, in 
the way the Prothonotary indicates his part in a case. It is "Thomas 
Junr." in one case, "T. Sm." in another, "T. Smith Jr.," in a third 
and "Sm. Junr." in a fourth. In a case at the January term, 1784, 



A LEADING LAND LAWYER 171 

grew tremendously, and he soon succeeded to that of Steel, 
as he had that of Wilson and Stevenson.* 

His Bedford office showed almost equal results in the 
Common Pleas Court, where Woods had the greater prac- 
tice, on account of Mr. Smith's non-residence, no doubt; 
but, while Woods had a greater practice than any one 
else, Mr. Smith was the only one who approached him 
in number of cases. In 1783, at the January term, he had 
thirteen out of the thirty-eight cases considered, and 
twenty-five out of sixty-three at the April term. The July 
term showed twenty-four out of fifty-six, and that begin- 
ning in October, twenty out of thirty-six. The year 1784 
showed much the same relations between the various 
amounts of practice of the different attorneys in this court. 
There were one hundred and ninety-two cases during the 
year, and of these Mr. Smith had seventy-four, or nearly 
forty per cent.'^ 

Of course, these two courts were a small part of his 
practice, and not even all in these two counties, not to 
speak of the various other counties and their various 
courts, or the Supreme Court in banc at Philadelphia. 
"During the war," he wrote, December 3, 1784, in the first 
letter to his mother since the opening of the Revolution, 
"I was constantly in one public station or another & had 
not leisure to attend to my private business — I now pay 
the most unremitted attention to it — I attend more Courts 
than any other Lawyer in Pennsylvania — during the last 
12 months I have pleaded no less than 33 weeks & have 
travelled above 4000 miles on Horseback; but this is too 
severe on me & obliges me to be too absent from my 
family — I must, as soon as I can, contract my business, 
for I do not covet Riches — I should not have attended so 

"Smith Jr." is plainly stated to be "Thomas Smith, Esq." See 
Docket covering these years for that court at Carlisle. 

^ After James Wilson left in 1779, Steel and Stevenson had the 
greater part of the practice, but Mr. Smith soon succeeded to that 
of them all very largely. 

^ This year witnessed the first meeting of the Council of Cen- 
sors, which began in November, 1783, and extended its work to late 
in 1784. Judge Bryan was the leader of the radical element, which 
controlled, and St. Clair, Wayne and others led the minority. "The 
Journal of the Council of Censors" is one of the most interesting 
volumes with which a student of Pennsylvania constitutions and 
politics can become acquainted. 



172 THOMAS SMITH 

many Courts; but when I married I was obliged to re- 
move from the County in which I had till then dwelt, as 
my wife did not chuse to go so far from her Parents^ — 
therefore as I was engaged in business there I was obliged 
to attend to that & also to the business in which I became 
soon engaged in the County in which I now dwell. I have 
three young gentlemen studying the Law with me, one 
of whom is the third Son of my Brother & Benefactor 
William — I trust I have it in my power to return some 
small part of the great obligation I am under to the 
Father, through the Son — you may know his age, for he 
was not born till three years after I left Scotland, yet he 
is three inches higher than I am — he possesses a very fine 
genius & a judgment far above his years — he is a fine 
Public Speaker & if his life and health are preserved, he 
bids very fair to be an ornament to the Profession for 
which he is intended: to prepare him to be a great &, 
what is more, a good Man, no pains shall be spared on 
my part — indeed I ascribe much of the Success which I 
have had in the world (under Providence) to those prin- 
ciples of truth & integrity early instilled into me by the 
example of his Uncle Charles, while I lived with him in 
London — a better Man than Charles never lived — this 
young gentleman is named after him & I trust will imitate 
his virtues.'' * * * j omitted to inform you in the 

^ This statement would seem to lend additional probability that 
he did not come to America much before his location at Bedford 
in 1769. 

^ Hon. Charles Smith, LL.D., was born at Philadelphia, March 
4, 1765, and was the favorite son of Dr. William Smith, by whom 
he was educated. He graduated from Washington College, Mary- 
land, in May, 1783, and after a brief study under his brother, Wil- 
liam Moore Smith, at Easton, finished his studies with his Uncle 
Thomas at Carlisle. He was admitted to the bar in Philadelphia in 
1786 and in Lancaster in 1787, after which he settled in Northum- 
berland county, and was sent with Simon Snyder, afterward Gov- 
ernor, to the Constitutional Convention of 1789- '91 of Pennsylvania. 
He was a leader in the convention, and at the summer recess of 1790 
took measures for inaugurating the first law school in the State as 
a department of the College of Philadelphia. The newly adopted 
Constitution of the United States needed exposition and defense in 
the college of the metropolis and capital at this time, and instead of 
a law school, a committee of the trustees, composed of Messrs. 
Shippen and Hare and Justice James Wilson, of the Supreme Court 
of the United States, proposed a plan for law lectures. These were 
given by Justice Wilson himself, and they ceased after a couple of 
seasons when their purpose was accomplished. Charles Smith 



A IvEADING LAND LAWYER 173 

proper Place, that the Lands & other Estates of which I 
am possessed would sell for about four thousand guineas ; 
but Money is very scarce in this Country & were I obliged 
to sell it, I could not get half the Money for it in any 
reasonable time."^ 

In the same letter, after referring to his wife in the 
glowing terms quoted elsewhere, he says: "She has 
blessed me with two Daughters & my beloved wife has 
given your name to the eldest — the other she has called 
Mary^ — I was in raptures with my dear wife when she 
shewed that affection for you in giving your name to her 
first born, but she is uniformly good in every instance. 
* * * My beloved wife requests me to present her 
Duty & Affection to you — your namesake is prattling 
about me & the young one is laughing on her Mother's 
Knee." 

A few days after this domestic picture was written, Mr. 
Smith set out for Washington, Pennsylvania, to try a suit 
at the December term (1784), in which he had more pride, 
probably, than in any other case in his long practice. On 
the 2 1 St of the very month of September, 1767, when 
Thomas wrote a letter to his mother from London, a 

settled in Lancaster, where he married the daughter of Justice 
Jasper Yeates, of the Supreme Court of Pennsylvania. He was with 
the staff of the army at the Whiskey RebelHon of 1794, in 1805 be- 
came a member of the American Philosophical Society, and in 1806 
began a three years' service in the Legislature as Representative. In 
1810 Governor Snyder appointed him to edit the Laws of Pennsyl- 
vania, the scholarly work since known as "Smith's Laws." He be- 
came State Senator in 1816 and in 1819 became President Judge of 
the Ninth District, a position he resigned in 1820 to become Presi- 
dent Judge of the newly created District Court of the city and 
county of Lancaster, which he held until it was abolished. He was 
made Doctor of Laws by the University of Pennsylvania, the fourth 
to receive the degree after Marshall and first before Kent. He was 
suggested for the Supreme Bench of Pennsylvania in 1817 and edited 
Yeates' Reports. He died in Philadelphia in 1836. [The writer is 
indebted for permission to use part of these notes to Hon. Hampton 
L. Carson, Attorney-General of Pennsylvania, for whom he pre- 
pared them in 1899.] 

1 About $21,000, on the basis of 25 cents to the shilling, a guinea 
being 21 shillings. 

'^ " Maria," as the fly-leaf from the family Bible among the De 
Renne Papers has it, was born May 10, 1784. She became the wife 
of Frederick Campbell Stuart, Esq., of Virginia, and at his death 
the possession of his Scottish estates was contested by relatives 
abroad in a noted suit before the House of Lords. She was success- 
ful, however. 



174 



THOMAS SMITH 



young Virginian, George Washington, who had been im- 
pressed by the lands southward of Fort Pitt, wrote Cap- 
tain William Crawford, at Stewart's Crossing, on the 
Youghiogeny river, to pick him out a nice tract of land 
of between 1,500 and 2,000 acres in his neighborhood. As 
George Croghan claimed nearly everything in sight. Cap- 
tain Crawford went very quietly about the matter, and 
after the purchase of 1768 from the Indians, took out 
warrants for four tracts, which passed to Washington Feb- 
ruary 28, 1782.^ Soon after the warrants were taken out, 
namely, in 1770, Washington visited the region now Wash- 
ington county and directed Crawford to get him more 
land in that quarter. Soon after he secured suitable lands 
on Chartiers creek and Miller's run, and Croghan, on 
learning it, claimed the land and urged settlers to locate 
upon it. In 1774, when the Virginia claims were causing 
so much trouble in that section. Captain Crawford advised 
Washington to take out a patent for his lands, from the 
Virginia government also, which he did on July 5, 1775, 
as part of the territory of Augusta county. The settlers 
were warned off in 1776 and again in 1779, but in vain. 
After the Revolution, General Washington, in September, 
1784, visited his lands and kept a journal of the trip. A 
county had been organized there after the general settlement 
of the Virginia claims in favor ot Pennsylvania, and named 
in his honor. 

By September 21 he had satisfied himself that legal 
measures must be taken at once to secure possession from 
the "squatters." On the next day he set out for what is now 
Uniontown, Pa., "in order to meet with and engage Mr. 
Tho^ Smith to bring Ejectments & to prosecute my suit for 
the Land in Washington County."- The settlers secured 
Hugh H. Brackenridge as counsel. 

What the interview between General Washington and 
Mr. Smith may have been is not known. The latter made 
some notes of the case: 

"Brief of General Washington's Land on Millers Run:" 

"23 March 1771 Col. W°^- Crawford Surveyed 2813*^ on 

^ Crumrine's History of Washington county, Pa., 1882, p. 856. 

^ Baker's "Washington After the Revokition," 1898, p. 15, from 
Washington's diary of that trip, preserved in the State Department 
at Washington, D. C. 



A LEADING LAND LAWYER 175 

Millers Run for Georg-e Washington — the right not men- 
tioned. 

"14 October 1770 John Posey entered into a Bond to 
Genl. Washington conditioned to convey his right to 3000* 
— under the Proclamation of 1763. 

"1774 A Patent for 2813*1 — the above Survey granted 
to G. Washington but as the Copy of the Survey Returned 
to the ofhce by Lewis the County Surveyor, & on which 
the Patent Issued, is not obtained, the Date of it does not 
yet appear. 

'*Col. Crawford made Improvements on the Land for 
General Washington before the adverse Parties claimed 
(but what those Improvements were does not appear) — i 
May 1772. Col. Crawford found six Men on the Land 
who had built a House & cleared 2 or 3^ — he paid them 
£5 for their Improvement, & built 4 Cabbins viz one on 
each corner of the Land," etc. 

This is sufficient to indicate that it would be necessary 
for General Washington to go back to Virginia and for- 
ward all the proofs possible to collect. Meanwhile, the 
preliminary entry of the case was made at the December 
term, 1784, as "Lessee of George Washington, Esq., vs. 
Timothy Turnout, with notice to" thirteen settlers.^ The 
notice was successfully served at once on all but one, who 
happened to be away. General Washington, at home, was 
working hard to gather all the proofs necessary, the 
records from the Virginia Land Office, copy of the agree- 
ment between Pennsylvania and Virginia, proclamations 
in 1774, and the like, and a long, carefully written letter 
detailing the facts. It was July 14, 1785, before he sent 
what he had gathered, "a necessary one, viz., the British 
King's Proclamation, properly authenticated, forbidding 
the settling of the Western Lands — in defiance of which 
the Defendants took possession of my Land, which was 
surveyed for Military services, is not yet come to hand; 
but shall be sent as soon as it does." He thought the 
weak point of his case might be the meager extent of his 

^ Previous to 1806 fictitious names, such as Timothy Turnout, 
John Goodright, et al, were used in testing title to real estate. The 
papers in this case were found in the basement of an old building 
at 18 High street, Carlisle, Pa., believed to have been the site of 
Mr. Smith's office then. They are now in the possession of C. P. 
Humrich, Esq., of that place. 



176 THOMAS SMITH 

improvements. He also indicates that, as Mr, Smith had 
evidently informed him that James Wilson had expressed 
a willingness to serve on the case, that it wasn't neces- 
sary, and that Smith, not Wilson, as has been thought, 
was his first choice. "I feel myself under great obligation 
to Mr. Wilson," he writes, "for his readiness to serve me 
in this suit, because I am satisfied motives of friendship, 
more than those of interest, were his inducements. His 
attendance on Congress must now render this impracti- 
cable, if it were ever so necessary; but to me, the case 
seems so clear & self-evident, that I think nothing more 
is necessary than to state facts. However, as you under- 
stand the decision of your Courts better than I do, I leave 
it wholly to you to call in assistance, or not, and from 
whom you please." 

Notwithstanding all this assurance of the self-evidence 
of the case however, he adds: "To ease you as much as 
I am able of this, I have, in a paper enclosed, put down 
the foundations, and evidence in support of my title, under 
all circumstances, as they have occurred to me. — As also 
the pleas which / suppose will be urged in behalf of my 
opponents, in opposition thereto." These two statements 
are of especial interest as being the only known legal 
argument ever prepared by Washington.^ "The ground 
on which the title of G: Washington to the 2813 acres of 
Land in Washington county. State of Pennsylvania, is 
founded; with the evidence in support thereof," covers 
eight foolscap pages, each page arranged in two columns, 
the first showing the "Ground" and the second the "Evi- 
dence." These are followed by five pages, arranged in 
similar manner, devoted to "The ground, on which it is 
presumed the Defendants will place their Defense," show- 
ing the "Pleas" in one column and the "Answers" in the 
other. The General was not content with this, even, for 
on September 10 he wrote Mr. Smith further reflections 
on the delayed Proclamation, which had been sent before 
he mailed his former packet. In this, also, he says he has 
heard that the intruders were going to leave. What it 
meant he did not know, but whatever it meant, since they 
had had his land for ten or twelve years and caused him 

^ A photographic reproduction of the first page is here given. 




=^' 






-<s^^ 










^si-«<(2_^^ 













^L-s^':'^.-^ ^/yfc,,^ „>^$e2_^^iL--T_ .- 










First Page of the only known Legal Argument by George Washington, 
in possession of C. P. Humrich, Esq., Carhsle, Pennsylvania. 



A LEADING LAND LAWYER 177 

great annoyance and expense, "It is my wish & desire," 
he adds, "whether they leave the Land voluntarily, or are 
compelled to do so by a course of Law, that you should 
sue them respectively for Trespasses, Rents or otherwise, 
as you shall judge best, & most proper to obtain justice 
for me." 

The reply to this is so interesting and characteristic 
of Mr. Smith that it is given entire. Not many men have 
been either courageous or wise enough, or had the op- 
portunity, to counsel moderation and mercy to this revered 
American commander. "When the letter which you did 
me the honour to write to me on the 14" of July last, was 
brought to CarHsle," he writes on November 17, 1785, to 
General Washington at Mt. Vernon, "I was in Philadel- 
phia, & did not receive it till my return in August.^ I 
could not answer it before my return from the western 
Courts, because I had left your papers at Bedford (where 
I leave all my papers respecting my Business in the west- 
ern Courts, which are not necessary to be brought to this 
place) — ^they were locked up in a private drawer of mine, 
and, as I was obliged to go up so soon, I did not think 
it proper to trust any person to bring them down. On 
my return from those Courts, I was honoured with your 
letter of the 10*^ of September, and, if I could have de- 
voted one hour to the examination of all the papers, I 
would certainly have done myself the pleasure to have 
written to you, before I went to Westmoreland, with the 
Judges of the Supreme Court; But as soon as the Busi- 
ness of the County Court at this place, was finished, I was 
obliged to follow them, & could not overtake them, till 
they arrived at Westmoreland: indeed the Chief Justice ^ 
had been so obliging as, at my request to postpone hold- 
ing that Court, from the 24**^ to the 31=* of October. Had 
I been favoured with your first Letter two weeks sooner, 
I should have requested the Judges to have holden a Court 
of nisi prius in Washington County this season, and it is 
probable I might have prevailed ; but it was afterwards too 
late as they had made their arrangements as to the other 



^ The Dockets of the Supreme Court show that he had cases be- 
fore that bench during this period, where he is also described as 
"Smith, Jr.," and "T. Sm." and probably "Sm." 

"Thomas McKean. 



lyS THOMAS SMITH 

Counties. — Some Ejectments have been tried in West- 
moreland, in which the titles of the Defendants were their 
Improvements, made before the plaintiffs had obtained 
their ofhce right; notwithstanding which the plaintifif re- 
covered — there was only one case so circumstanced in 
which the Jury gave a verdict for the Defendant, which 
the Judges immediately declared, w^as contrary to Law & 
that they would grant a new Trial, if applied for in Phila- 
delphia, which will be done: In their charge to the Jury, 
they laid down the Law respecting Improvements, in op- 
position to office rights, so pointedly & decidedly in favour 
of the latter, that I believe their decision must very 
materially operate in your favour, so far as the Defendants' 
claim by settlements made under the Jurisdiction of Penn- 
sylvania. In the last Ejectment which was tried, I had the 
point brought fully before the Court (having an eye to 
your Ejectments). The Defendant claimed by an Improve- 
ment only. I objected to its being given in Evidence — 
the Court ruled that it should not, & the plaintiff produc- 
ing an order & survey had a verdict, the Jury not going 
from the Bar, having no Evidence on the part of the De- 
fendant — this decision will produce very important Effects 
on the property of that Country and will, I think, shake 
the confidence of your opponents in the goodness of their 
title. I assure you it has made me more sanguine than 
I was before, and will warrant me in directing my atten- 
tion chiefly to your legal title, on the Trial, altho' I think 
it necessary to keep the other in view. Permit me to make 
a few remarks on that Title. The date of Captain Posey's 
warrant does not appear by the Patent, or by any paper 
in my possession that I at present recollect. I hope you 
will not think, that I put you to unnecessary Trouble in 
proving the execution of Captain Posey's Bond, because 
altho' the recital of it in the patent is Evidence against 
Virginia by which the Patent is granted, yet it is no Evi- 
dence against any other, & your opponents claim under 
Pennsylvania. I know little more of the mode of obtain- 
ing Titles to Land in Virginia than what I have learned 
from your papers & therefore some observations which I 
have made & may make to you may be unnecessary. I 
have understood & I think I mentioned to you that the 
time of the entry of the warrant with Mr. Lewis, the 



A LEADING LAND LAWYER 179 

County Surveyor, is material as it is located & fixed to 
the spot from that time only — If it be, is a certified copy 
from him proof of the time, by the Laws of Virginia? I 
understand that the Defendants have informed themselves, 
what time it was entered with him & are much encouraged 
thereby; but this is only surmised to me. I will write to 
Mr. Crawford respecting his commission, but if he cannot 
produce it (& if it should be necessary) a certificate of it 
may, I suppose, be obtained from William & Mary Col- 
lege — if you can readily obtain such certificate & without 
Trouble, it may be of some use; but I am somewhat in- 
clined to believe it is not necessary, because he was known 
to be an officer de facto, & that act recognized by the 
Colony. I am pleased with Mr. Randolph's Arguments; 
but if the Proclamation exists, which takes oft the restric- 
tions in that of 1763 & extending the Benefits of it to the 
Western Waters, I think it might obviate a specious objec- 
tion, if you could obtain an authenticated copy of it. — 
The Chief Justice told me that he believes a Court of 
Nisi Prius will be held in Washington County in the latter 
end of May or beginning of June next. I asked whether 
I might give you this information: he said I might. I 
told him that as several points of Law would arise in your 
Ejectments I wished to try them before him — The Judges 
will in January make their arrangements for the Spring 
Circuit, & Mr. McKean says that if Mr. Rush will cross 
the mountains, he will come with him (the difficulty is oc- 
casioned by some coolness about rank which subsists be- 
tween the two other Judges)^ — at any rate he has been so 

^ The Justices had been indicated as Chief Justice, Second and 
Third Justices, when these positions were held by McKean, WilHam 
Augustus Atlee and John Evans. When George Bryan entered the 
court he was described as Fourth Justice or Judge. At the death 
of Judge Evans his position was taken by Justice Jacob Rush, so 
that while Mr. Bryan was senior in service, Mr. Rush had been ap- 
pointed to succeed the Third Judge. If Judge Bryan, who was not 
averse to making precedents himself, construed his position as that 
of Third Justice after the death of Judge Evans and before the ap- 
pointment of Rush, there might be ground for coolness between 
these two, but what ground there could be for dispute about rank 
between Justices Atlee and Bryan does not appear, unless Justice 
Bryan, who was of Philadelphia, was attempting to replace the old 
order of rank, by the territorial order which prevailed in the army 
and Assembly, namely, that based on the relative age of the counties 
they came from, which would make Justice Atlee, who was from 
Lancaster, follow the Philadelphian. 



i8o THOMAS SMITH 

obliging, as to assure me that he will inform me, as soon 
as it is fixed who goes to the westward. As soon as I 
gain this Information, I will again have the honour of 
writing to you by the first Conveyance. I am going up 
to the western county Courts in the meantime, & if I can 
discover anything new, or if anything should occur to me, 
I shall beg leave to mention it. — I took down the names 
of several witnesses from Col. Shephard & Mr. McCor- 
mick, but they could not tell me with precision what they 
could testify; but as the decision of the Supreme Court 
is so materially variant from those in the County Courts 
of late respecting Improvements, I do not think that your 
title to those Lands will so very much depend upon their 
testimony, as I once supposed — however, it may still be 
of Importance. — In the last Letter which you did me the 
Honour to write to me, you signified your desire that I 
would bring actions of Trespass for mesne profits against 
all the Defendants respectively — that may produce a good 
Effect by convincing them that you are sensible of the 
injury they have done you, & determined to have every 
satisfaction which the Law can give you — or it may pro- 
duce a bad Efifect in the minds of the Jury who are to try 
the Ejectments — their modes of thinking may lead them 
to believe the Defendants rather unfortunate than other- 
wise, and that as these double actions will ruin most of 
them, will not the Jury be willing to lay hold of every 
point however trifling which may make against your Title 
or in favour of the Defendants. Pardon this liberty, Sir, 
believe me these Sentiments are dictated by the most pure 
& ardent desire to promote whatever may be for your 
Interest. I was lately taken in at the Trial of such an 
Action brought after a recovery in Ejectment in West- 
moreland, and the Jury thinking that the Improvements 
which the Defendants had made were of more value to 
the plaintiff than all his expences & loss; found a verdict 
for the Defendant — the Council on both sides agreed that 
they must find some damages, as it was after a recovery 
in Ejectment — and the Court at the instance of both sides 
sent them out again — they returned & still found for the 
Defendant — his Council then agreed to confess Judgment 
for i^ damages to save the eventual expence of a writ of 
Error — had this action been brought before the recovery 



A LEADING LAND LAWYER l8l 

in Ejectment, the Defendant might have gone into the 
Trial of the Title again & the plaintiff might have been 
obliged to pay the Costs. — ^However I will act agreeably 
to your orders, unless you should countermand them be- 
fore the next Court at Washington County, to which I 
must go in less than 4 weeks — I shall endeavor to order 
matters respecting the appointment of the Jury in such a 
manner as to be as free from objections & influence as 
possible — we have a new Law, respecting Juries — they are 
drawn by Lot out of four times the Number returned by 
the Sheriff, so that neither party can certainly know one 
of the men who may try his Cause — I will endeavor to 
inform myself how the Sheriff stands affected, & if I shall 
have the least reason to suspect that he will not be im- 
partial, I will attempt to have a special Jury named by 
the Court & Struck by me with the Assistance of your 
Friends. "1 

General Washington replied at once, in duplicate, De- 
cember 7 (1785), saying that he had no idea of bringing 
the actions for trespass before the main case was settled, 
"and," said he, "from the statement of the cases which you 
have mentioned, I now leave it altogether discretionary 
with you, whether to bring them afterwards, or not. I 
never should have thought of this mode of punishment, 
had I not viewed the Defendants as willful & obstinate sin- 
ners — persevering after timely and repeated admonition, or 
a design to injure me — but I am not at all tenacious of this 
matter." The court was not arranged for in the Spring, 
possibly because Mr. Smith did not want it, as he found, 
and also led Washington to find, for the first time, that 
certain dates, particularly the date of the Posey warrant 
subsequent to the date of the settler's occupancy, were un- 
favorable. General Washington admitted it in a letter of 
July 28, 1786, which plainly indicates that he has, as he 
signs himself, a growing "very great esteem" for his 
attorney. The Nisi Priiis Court was arranged for at Wash- 
ington, Pa., for the 23d of the following October, but 
in an excellent letter of September 22, the General tells 
of a fever which would prevent him going to the trial as 

^The fact that this is Mr. Smith's own hasty copy of his letter 
to General Washington will explain defects in it. 



i82 THOMAS SMITH 

he had hoped he might. In it he also asks Mr. Smith to 
let him know what sum will meet his "expectations" for 
all his trouble. The letter is a most earnest and cordial 
one, and expresses perfect satisfaction with Mr. Smith's 
information that the latter had chosen Mr. James Ross to 
assist him.i 

The results were successful. "As the Bearer is going 
immediately to Alexandria," writes Mr. Smith to the Gen- 
eral, in a letter of November 7, 1786, "I lay hold of the 
opportunity to Inform you that on the 24*^, 25* & 26^^ 
Days of October the Ejectments which I had the Honour 
of Bringing for you against James Scott & 12 others for 
Lands on Miller's Run, were tried at Washington at 
Nisi Prius & I have the very great pleasure to Inform you 
that Verdicts have been given in your favour in every one 
— your satisfaction upon this occasion may be equal to, 
but cannot exceed mine. I never was more agitated be- 
tween hopes and fears in any Cause in which I have been 
engaged — I had during the War been* repeatedly chosen 
into almost every Honourable office which my fellow citi- 
zens could bestow to which my merit gave me no preten- 
sions and which must therefore have been the more flatter- 
ing to my Vanity, but believe me Sir when I assure you 
that I am more proud of having it said that General Wash- 
ington Selected me as his Counsel in an affair of this Im- 
portance than of All the distinguished stations [in] which 
I had been so often placed. 

"1 had good Information that James Scott, Jun*" had 
the most plausible claim & that he was the ringleader or 
director of the rest — I therefore Resolved to take the Bull 
by the Horns, & removed the Ejectments into the Su- 
preme Court in such order as to have it in my power to 
try the ejectment against him before the Rest, reserving 

^ James Ross, according to Crumriiie's "Bench and Bar of Wash- 
ington County," p. 264, was probably admitted in 1784 in their courts, 
akhough there is no record of it. He was admitted in Fayette the 
same year, however, and is known to have been in practice in Wash- 
ington county at that time. He was born July 12, 1762, the son of 
Hon. George Ross, of York county. He was an instructor in Dr. 
McMillan's School for some time, and was induced by Hugh H. 
Brackenridge to study law. He afterward became a member of the 
Constitutional Convention of 1790 and of the United States Senate. 
He died at Allegheny City, November 27, 1847. An excellent por- 
trait of him is in possession of the Dr. Thomas McKennan family. 



A LEADING LAND LAWYER 183 

the Rule so that Had any unforeseen point turned up 
against me I could try the [case] or not as I pleased. 

"That trial, therefore/' he continues, "was ordered on, 
on the 24*^ after Dinner & lasted that afternoon, the next 
Day and till 11 o'clock in the forenoon of the 26*'^, when 
the Jury gave a verdict for the plaintiff. I thought the 
other defendants would have confessed Judgment & would 
not have been so mad as to have risqued weaker causes 
before the same Jury but I was mistaken — every one of 
them insisted on having a trial nay each would have de- 
manded a separate trial, but as I had consolidated the 
Ejectments against these defendants they were obliged to 
try them all together, & the trial did not last long. I take 
it for granted that many of the Jury wished it had been in 
their power to have given verdicts for the Defendants. 
I knew that we had very strong prejudices artfully 
fomented to encounter. I had applied to the Court to 
name the Jury at a time when the Bench was filled with 
such of the Justices as I believed would make out the most 
Impartial List which it was possible to Obtain. The de- 
fendants pretended that I had taken an Advantage of them 
& refused to strike the Jury (as it is called) I can truly 
say that I only Wished to have an Impartial & dispas- 
sionate jury which I believed I could not otherwise obtain 
& therefore I gave them notice to attend on a certain Day 
at the prothonotary's office in Philadelphia to strike — ■ 
they thereupon agreed that it should be done on the spot. 
I took down the Jury list to Philadelphia myself (having 
other business there) brought up the proper proofs — in- 
formed myself what Witnesses might eventually be neces- 
sary and even served the Subpoenas on as many as at- 
tended the preceding County Court. 

" I was assisted by Mr. Ross in a very masterly manner 
— we had consulted together before I had the Honour of 
receiving your Letter by Col. Sims & it gave us satisfac- 
tion that we had agreed to conduct the trial upon the 
plan pointed out in that Letter and that I had transcribed 
and brought up the Cases from the Books which were 
not to be had at Washington to support the points on 
which you directed us to rely. 

"In the Letters last alluded to," he continues, "you de- 



i84 THOMAS SMITH 

sired me to inform you with what sum you can equal my 
expectations and that you will Lodge it for me in Phila- 
delphia. I have had motives in conducting this business far 
more forcible than pecuniary considerations & therefore 
I trust you will pardon me If I decline naming any sum. 
Mr. Washington who was at Fayette County with you or 
Col. Sims will readily point out what is usual on such oc- 
casions and Mr. Ross (to whom I have promised to divide 
with him what I receive) & I will be perfectly satisfied. I 
hardly know how to express myself — let me assure you 
that I do not wish to receive a large Fee. 

"I will take your papers to Carlisle and will send them 
from thence to such place either in Philadelphia or Balti- 
more as you will please to point out. 

"I believe that the defendants in the Ejectments will 
be with you soon and endeavor to do what the[y] ought 
to have done when you made them the offer. I verily be- 
lieve that it was more their misfortune than their fault 
that they then rejected it. You have now thirteen planta- 
tions — some of them well improved. I take it for granted 
that the Improvements Increase the Value of the Land 
much more than all the expences of the Ejectments; those 
who made them are now reduced to Indigence ; they have 
put in crops this season which are now in the ground they 
wish to be permitted to take the grain away. To give 
this hint may be Improper in me — to say more would be 
presumptions. 

"Orders for obtaining possession cannot be Issued 
till the Supreme Court sits in January it will be neces- 
sary that you appoint an Agent in that Country to take 
possession and to [ ] the Lands for you, otherwise 
the fences & even the Buildings will probably be burned 
or otherwise destroyed. 

"Major Freeman put into my Hands several small 
Bonds due to you to put in suit. I have recovered most 
of the Money and paid over to him. he says he has some 
Others which when the Money shall be recovered I will 
pay in like Manner he seems to be as attentive to your 
Interest as to his own. 

"I pray you excuse the length of this Letter it is 
written during the Hurry of the Court here and therefore 



A IvEADING LAND LAWYER 185 

I had not time to make it shorter nor to write so fully as 
I wished."! 

It was a very long time before General Washington 
replied, but when he did write, as he did September 16, 
1787, at Philadelphia, the next to the last day of the Fed- 
eral Constitutional Convention, he explained that he found 
it impossible to write earher. "I still wish," he says, "that 
you would do so," referring to the fee, "and receive it out 
of the mone}^ which — by Major Freeman's report to me — 
you must be at the point of receiving — and permit me to 
add moreover that I wish yet more ardently I had it in my 
power to pay you in a more agreeable manner than this, 
but the fact is, my expenses in this city have been so much 
greater than I expected that it has deprived me of the 
means. * '•' * For the anxiety you express to have 
undergone during the prosecution of the Ejectments, I 
feel myself exceedingly obliged, and pray you to accept 
my thanks for this proof of your zeal as much as for the 
good wishes you are pleased to express for me."- This 
letter was miscarried, however, so that Washington wrote 
another on December 3 next, again asking about the 
fee. On the back of this Mr. Smith has left his copy of his 
most interesting reply, dated February 5, 1788, at 
Carlisle. 

"On my return from the Western Courts, two weeks 
ago," it reads, "I was honoured with your letter of the 
2^^ of December last inclosing a duplicate of another letter 
dated the 16*^^^ Sept^". Since my return I have had no op- 
portunity of writing to Philadelphia imtil now. I did not 
receive the letter of the 16*'^ Sepf till the middle of No- 
vember & having by my letter of the 26^^ October antici- 
pated an answer to it, excepting as to one point, I did not 
think it proper to take the liberty of writing again to you 
at a time when affairs of such infinite importance to your 
country must greatly engage your attention. — My busi- 
ness requiring me to go to Philadelphia in November I 
did not think myself at liberty to express myself on the 



^The haste, in both the original and this copy by Mr. Smith 
himself, explains its defects. 

^This and the two succeeding letters are among the De Renne 
Papers, and serve to nearly complete those of the C. P. Humrich 
collection at Carlisle. 



i86 THOMAS SMITH 

excepted point until I should take the opinion of some of 
my law friends there nor until I should see Mr. Ross — I 
mean on your proposition respecting the trial fees in the 
ejectments in Washington county — According [ly], spend- 
ing an afternoon with Mr. Wilson I asked his opinion, 
informing him that it was not my wish ; & I was satisfied 
that it was not Mr. Ross's wish to receive any extraordi- 
nary fee, but that as you had put the matter on so delicate 
a point as leaving the quantum to me, I wished to be 
guided by my friend's advice — Mr. Wilson replied he was 
not at liberty to give his opinion, intimating as I con- 
ceived you had spoke to him on the same subject & that 
he had declined forming an opinion. I then requested Mr. 
Yeates to favor me with his opinion — he replied that he 
thought iioo to each would be a reasonable & liberal fee — 
Permit me to assure you that I shall be perfectly satisfied 
with less & so will Mr. Ross I am convinced, although he 
would not name any sum when I asked him at the last 
circuit, but he leaves the whole [matter] to me. However, 
in order that you may guess with what sum I will be satis- 
fied, I have retained only £50 for myself, & paid Mr. Ross 
the like sum including a sum which he was to receive from 
one Jackson on your account by my order." 

After some further remarks about the other cases this 
letter closes ; but he writes another on the 20th of Febru- 
ary, 1789, in which, after mention of other phases of the 
new cases, he writes an interesting paragraph which may 
be used in closing the account of this much-prized case. 
"Give me leave," he writes, "to congratulate, with the ut- 
most sincerity & highest satisfaction, the United States of 
North America, on the new prospect which they now have 
of being guided to dignity, honour & happiness, and of 
being made really independent & united; that you may 
long, very long fill the great and important station, to 
which you will soon be called, by (I trust) the unanimous 
voice of that society to which you contributed so essen- 
tially to give political existence, is the ardent wish of him 
who is with the utmost respect. Sir;" etc.^ 

_^ Mr. Smith finished all of General Washington's business in 
April, 1791. Letter to Judge Jasper Yeates, July 18, 1791, in the 
collection of Smith letters, in the possession of D. McN. Staufifer, 
Esq., Yonkers, N. Y. 



A I.EADING LAND LAWYER 187 

Judge Edward W. Biddle, the President Judge of Cum- 
berland county, and a historian who has made greater 
research into her legal history than any one else, says: 
"Thomas Smith was admitted to the bar of this county in 
April, 1778, but his legal practice here was slight before 
he became a resident of Carlisle in 1782. In the next nine 
years, * * * he had a good local practice, but not a 
large one. During that period Thomas Duncan (Justice 
from 1817 to 1827) had the most extensive business, whilst 
Jasper Yeates (Justice from 1791 to 1817) and James 
Hamilton (President Judge from 1806 to 1819) and other 
distinguished lawyers were also active practitioners. There 
was marked ability at our bar at the time referred to and 
it is much to the credit of Thomas Smith that General 
Washington should have selected him, from a body of 
such strong men, to conduct ejectment proceedings in 
Washington county. * * * Being a painstaking and 
exact man, his work was always well done." 

His work was so largely before the Judges of the 
Supreme Court during this period that after the above 
glance at his local practice at Carlisle, a glance at his 
local practice at Bedford for the rest of his period of 
practice will be of interest, especially because it will com- 
plete a picture of his work in the court in which he began 
his legal career. In 1785 the strongest lawyers of central 
and western Pennsylvania had practice in the Bedford 
Court of Common Pleas, and yet Mr. Smith was in nearly 
fifty per cent, of the cases had that year, namely, sixty- 
two out of one hundred and twenty-seven.^ The next year 
he was in fifty-seven out of the one hundred and forty 
cases before that court, and nearly always m the cases 
employing more than one attorney on each side.- The 

^ These were divided as follows : 16 out of 34 at the January 
term ; 12 out of 23 at the April term ; 20 out of 42 at the July term, 
and 14 out of 28 at the October term. 

' A letter from Hartley at York to Yeates at Lancaster at this 
period, namely, September 9, 1786, says: "You know that Mr. Thomas 
Smith will not be at the Supreme Court at Franklin ; Mr. Chambers, 
Mr. Duncan and I will have to fight the battle against Stewart and 
your own notes will not be amiss upon the trial." Yeates Papers at 
the Pennsylvania Historical Society, 1300 Locust street, Philadelphia. 

At the January term of this year Mr. Smith had an interesting 
case, in one Samuel Dean, a white farmer of good standing, near 
Bedford, who complained that he had been maliciously called a 



i88 THOMAS SMITH 

two Woodses, the elder and younger, had the greater amount 
of business still, and Duncan, Hamilton, Riddle, Dunlop and 
Ross each had an excellent practice. In 1787 he was en- 
gaged in seventy-two out of the one hundred and eighty 
cases — a year of great legal business there. At the April 
term he was in exactly fifty per cent, of the cases. The year 
1788 gave a similar record, namely, sixty-four out of one 
hundred and forty-eight cases, with nearly fifty-eight per 
cent, at the October term, and the year 1789 showed forty- 
three out of one hundred and twenty-nine. There were 
forty-one of the one hundred and forty-four cases of 1790 
to Mr. Smith's credit, and for the three remaining terms 
of practice in 1791 he took part in twenty-four cases out 
of a total of seventy-four. This engages him in almost 
forty per cent, of the practice of the local court of Bedford 
county during the last nearly seven years of his practice. 
This is a very large amount of business for a man who 
was continually following the Judges of the Supreme 
Court. 

Referring to his entire business during this last decade 
of his practice, he says : " I did not write less than 4,000 
letters on it, during the last 10 years I was at the Bar."^ 
"My Professional duties at the Bar," he says elsewhere, 
"were uncommonly laborious, having for 9 years rode up- 
wards of 3,000 Miles ^ annum, over the most mountain- 
ous parts of the State, which being newly settled, border- 
ing on the Indians, & having been almost depopulated by 
the Indian war, the accommodations were, of course, 
generally very bad." 2 "Being obliged to follow the Judges 
of the Supreme Court the moment the County Court ended 
in this place [Bedford], a ride Day and Night to overtake 
them and to attend the Western Circuit, from which we 
returned last Week, I have not till now had an oppor- 
tunity," etc., is a not uncommon description of his situa- 



mulatto by a certain family, and that it had led to ostracism. A 
most serious result of the ostracism, too, was that his Elizabeth had 
broken their engagement. He got Mr. Smith to bring action against 
the slanderers. 

^Letter to Dr. Peter Smith, Aldie, Cruden parish, Aberdeen- 
shire, Scotland, August 11, 1795. De Renne Papers. 

"Letter to the same, September 16, 1804. De Reane Papers, 



A LEADING LAND LAWYER 189 

tion during this entire period/ It is hardly possible for 
a man with such a record as this and one so vigorous, 
sound and able in public life as he had proved himself, 
not to be considered by leaders for higher positions of 
trust, responsibility and honor, even if there were no other 
reasons for it. In the case of Mr. Smith, however, there 
were other reasons, also, and these had to do with most 
interesting and important developments in the life of both 
State and Nation, which came to a climax in the summer 
of the year 1791. 

^ From a letter to the Comptroller of Accounts of Pennsylvania, 
dated November 26, 1783, in the possession of Simon Gratz, Esq., 
Philadelphia. 



X 

Reorganization of the Judiciary Under the New 
Constitution of 1791 

President Judge of the Fourth Judicial District 

and Member of the High Court of 

Errors and Appeals 

1791 

If Thomas Smith wished to avoid pubHc Hfe and devote 
himself unremitting"ly to his profession, he chose the right 
place to secure those results when he made his home in 
the capital of Cumberland county in 1782. That mountain 
region, which sent Robert Whitehill to the Assembly so 
often, was ardent in support of the blood-sealed Constitu- 
tion of 1776, and it was safe to predict that no well-known 
opponent of the single-branch Legislature which charac- 
terized it would be called from his private duties to public 
councils. 

Indeed, it looked as if this Constitution was, as its 
opponents had feared it would be, "fastened" upon the 
people of Pennsylvania for all time, for it was evident that 
even with the return of the old anti-Constitutionalists to 
power there was no inclination to make a direct attack on 
it. They could afford to take their own time and methods 
concerning it, since they were in control of the single- 
branch Assembly wherein was vested all the power. 
Events, however, were rapidly solving their problem for 
them, or at least indicating the direction the attack should 
take. Ever since 1780, when young Hamilton, of New 
York, wrote James Duane, intimating that the old Con- 
federation ought to be strengthened and suggesting ele- 
ments of a Federal Constitution, the seeds of a movement 
toward that end had been slowly germinating, and every 
new weakness betrayed by the Continental Congress only 

190 



A JUDGE IN THE REORGANIZED JUDICIARY 191 

hastened the process.^ The long struggle to reform the 
finances, begun when Mr. Smith was m Congress, and the 
effort to secure a revenue by national imposts was still on, 
the opposition consisting of New York, Rhode Island, 
Maryland and Georgia. It was the action of New York in 
May, 1786, on this matter which brought things to a crisis. 
It is not the purpose here to enter into the history of the 
Federal Constitution. Suffice it to say, that to reorganize 
the finances required the reorganization of the Confedera- 
tion, and a convention was called to meet in the old Decla- 
ration chamber of the State House at Philadelphia on 
May 14, 1787, just below the room used by the single- 
branch Assembly of Pennsylvania, when it met, and oppo- 
site that used by the Supreme Court and High Court of 
Errors of Pennsylvania.* 

The convention, after four months' hard work, com- 
pleted our present great Constitution and adjourned on 
September 17. They sent the instrument to Congress, 
then sitting at Amra^lis, and the next morning it was also 
read to the General Assembly up stairs and copies were 
given to the press of Philadelphia, in which it appeared 
on the 19th. Discussion and compromise it produced in 
Congress in abundance, but the appearance of this instru- 
ment of checks and balances, separation of executive, 

^ Constitutional History of the United States, by George Ticknor 
Curtis, 1S89, Vol. I, p. 236. 

^ In the "Ljfg of j^ey_ Manasseh Cutler," 1888, Vol. I, p. 262, 
in his diary under date of Friday, July 13, 1787, speaking of his visit 
to the State House at Philadelphia and the central hall, he says : 
"From this aisle is a broad opening to a large hall, toward the west 
end, which opening is supported by arches and pillars. In this Hall 
the Courts are held, and, as you pass the aisle, you have a full view 
of the Court. The Supreme Court was now sitting. This bench 
consists of only three Judges. Their robes are scarlet ; the lawyers', 
black. The Chief Judge, Mr. McKean, was sitting with his hat on, 
which is the custom, but struck me as being very odd, and seemed 
to derogate from the dignity of a Judge. The hall east of the aisle 
is employed for public business. The chamber over it is now oc- 
cupied by the Continental Convention, which is now sitting, but 
sentries are planted without and within — to prevent any person from 
approaching near— who appear to be very alert in the performance 
of their duty." It is probable that when the Assembly met the 
Continental Convention took the room below and the Assembly that 
above, as it is not probable either Mr. Cutler or Editors McMaster 
and Stone, in their "Pennsylvania and the Federal Constitution, 
1787-1788," p. I, who place the convention below and the Assembly 
above at its close in September, could make so glaring an error. 



192 



THOMAS SMITH 



legislative and judicial functions, and even a double- 
branch Legislature, came upon the lovers of the old Con- 
stitution of 1776 like a bolt out of a clear sky and roused 
them to the belief that they were the victims of a con- 
spiracy. That General Washington was President of the 
convention which framed it, and the venerable President 
of the State, Franklin, the leader of the Pennsylvania mem- 
bers, did not signify. 

The struggle at once began in the Assembly over the 
call for a ratifying convention. The old "Constitution- 
alists" who defended the Constitution of 1776 were led by 
a "junto in Philadelphia" of which Judge Bryan was the 
head. The new instrument, if adopted, compelled a change 
in the State Constitution. They were adroitly thrown on 
the defensive. What was then, and long afterward, in 
their minds, is indicated by a resume of the sitviation 
found among the papers of Judge Bryan : "What has been 
called the anti-constitutional or Aristocratic Party then 
governed our Councils and the representatives in Conven- 
tion were chosen almost wholly of that party & entirely 
from the city of Philadelphia. The convention met with- 
out much expectation of anything very important being 
done by them until towards the close, altho' from Intima- 
tions now made, beforehand, by some foolish members (as 
they were thought) of the Society of the Cincinnati, that 
nothing less than a monarchy was to be erected & that the 
people of Massachusetts were driven into Rebellion for 
the very purpose of smoothing the way to this step by 
their suppression." ^ The names of the parties were now 
reversed : the old " Constitutionalists " now became the 
"Anti-Constitutionalists" in regard to the Federal instru- 
ment, and the "Aristocratic Party," to which Mr. Bryan 
assigned Thomas Smith, became the "Constitutionalists." 

The Assembly, then composed of sixty-nine members, 

^ This paper is unsigned, and is evidently a copy of a reply to 
some questions, which accounts for the omissions which involve the 
sentence. These Bryan Papers were located by the writer in the 
possession of Hon. W. F. Bryan, Mayor of Peoria, 111. Some of 
the papers, also, are owned by Mr. S. S. Bryan, of Titusville, Pa. 
The Pennsylvania members of the Federal Convention, which framed 
the Constitution, were Benjamin Franklin, Thomas Mifflin, Robert 
Morris, George Clymer, Thomas Fitzsimmons, Jared Ingersoll, 
James Wilson and Gouverneur Morris — all of Philadelphia. 



A JUDGE IN THE REORGANIZED JUDICIARY 193 

contained a Federal or "Constitutionalist" party of forty- 
four. Two more were required for a quorum. Whitehill, 
Findley and the rest of the anti-Federahsts determined to 
absent themselves when the time came for voting for a 
convention. The people in favor of the Federal program 
determined that two of them should be present, and pro- 
ceeded to capture a Franklin and a Dauphin county mem- 
ber and carry them by force to the State House chamber 
to secure a quorum.^ The Assembly then voted for the first 
Tuesday in November, 1787, for election of delegates to a 
ratifying convention. Four weeks remained, and the can- 
vass grew very bitter.'^ "Centinel," supposed to be written 
by Judge Bryan and his friends, as the "Federalist" was 
by Hamilton and others, was the strongest series of papers 
against the Federal program. Mr. Wilson, on October 6, 
at the State House, made the greatest defense of it in 
Pennsylvania. The convention met at the State House 
on November 21, 1787, and proved to be one of the most 
representative and strong bodies ever elected in the State, 
and safely Federal in sympathy. Whitehill, Findley and 
others were there to fight the ratification; James Wilson 
Avas the leader of the Federalists — and a right valiant 
champion he was. "I have just returned from Conven- 
tion," writes Jasper Yeates to his wife, on November 24, 
"where I have heard one of the most sensible, learned and 
elegant speeches delivered by my Friend Wilson on the 
new Constitution of the United States, that my ears were 
ever gratified with. He touched on the Difficulties of 
forming the new Government — the Inadequacy of the Late 
Confederation to the Purposes of America — the different 



^Judge John Stewart, of Franklin county, tells the writer that 
he drew the attention of the late Hon. Thomas B. Reed to this in- 
stance as an interesting example, which might throw light on Mr. 
Reed's own quorum problems. 

* The activity of the anti-Constitutionalists is indicated by a 
bitter reference to them in the Gazette of October 3. "Is it con- 
stitutional or right," says "An Assemblyman," "for one of the 
Judges of the Supreme Court to interfere with his personal presence 
in the proceedings of the Council and Assembly of the State?" This 
refers to Judge Bryan. The Council refused to call the convention, 
and the Assembly published their own call. A copy of this call is 
bound in with the volume of the Gazette for 1785- 1787 at the Penn- 
sylvania Historical Society. 



194 THOMAS SMITH 

Species of Governments and the general Principles of the 
proposed Constitution in the most masterly manner." ^ 

How the Federalists looked upon the speeches and 
essays of the anti-Constitutionalists of the State is indi- 
cated in the following "Receipt for an anti-Federal Essay: 
Well-born, nine times — Aristocracy, eighteen times — Liberty 
of the Press, thirteen times repeated — Liberty of Conscience, 
once — Ncgroe Slavery, once mentioned — Trial by jury, 
seven times — Great Men, six times repeated — Mr. Wilson, 
forty times — and lastly George Mason's Right Hand in a 
cutting-box, nineteen times — put them altogether, and dish 
them up at pleasure."^ There were strong speakers on 
that side, however, and when it became evident that the 
new instrument was to be adopted, Mr. Whitehill on De- 
cember 12 offered amendments which they claimed would 
remove all objections. "They were fifteen in number," 
say McMaster and Stone, "and are remarkable as contain- 
ing the substance of the ten amendments afterwards added 
to the Constitution. Similarity so marked cannot be acci- 
dental. There is much reason, therefore, to believe that 
when Madison, in 1789, drew up the amendments for the 
House of Representatives, he made use of those ofifered 
by the minority of the Convention of Pennsylvania."^ 
Their action was in vain, however. "The Constitution of- 
fered us," wrote Jasper Yeates to his wife on the same day, 
"has been ratified by a majority of 46 to 23 and tomorrow 
we shall proceed to sign and seal & then publickly an- 
nounce it at the Court House, with Firing of cannon, &c." 
Robert Whitehill of Cumberland county went back home 
with only a hope that other States might not ratify it, and 
Judge Bryan at once took measures to aid in preventing 
such ratification. His party already had well-organized 
committees of correspondence. And yet this activity was 
not so much objection to the new Constitution as it was 
devotion to the old Constitution of 1776, which they con- 
ceived they were bound by oath not to change, except 

^ Letters of Jasper Yeates to his wife, in the possession of Dr. 
Alfred Whelen, of Philadelphia. 

''The Pennsylvania Gazette, November 14, 1787. 

^ Pennsylvania and the Federal Constitution, 1787-1788, edited 
by John Bach McMaster and Frederick D. Stone, 1888, p. 19. 

* Whelen Papers. 




James Wilson 

Half-tone of engraving by Eilw in. 

in Wilson's Works edited bv bis son 



A JUDGE IN THE REORGANIZED JUDICIARY 195 

through the septennial meeting of the Council of Censors. 
It required two-thirds of this Council even to recommend 
a change, but that body was chosen "in such a manner 
that seven counties (Luzerne, Huntingdon, Fayette, Frank- 
lin, Dauphin, Bedford and Northumberland), having 13 
members and 13,000 electors, can prevent any alteration 
from being even considered by a convention, though desired 
by all the rest of the counties, who have 57 members and 
57,000 electors."! "Our Supreme Executive Power," says 
another Federalist writer, on February 13, "is by this very 
constitution [of 1776] created by the votes of 24,000 
electors, out of 69,000" — 24,000 outvoting 45,000. The 
anti-Constitutionalists were making their last fight for the 
Constitution of 1776, which Thomas Smith had so vigor- 
ously opposed. 

The bitterness of the fight on the side of the anti-Con- 
stitutionalists is well illustrated by two letters of Judge 
Bryan to one of his correspondents, on March 7. They 
fell into the hands of the Federal party and were pub- 
hshed in full in the Gazette of April 2. They were sub- 
mitted to the editor with the remark that they "afford 
one proof amongst a thousand, that the indefatigable mon- 
ster, the Centinel, is endued with a zeal and activity in 
every work of mischief always commensurate with its ex- 
tent." "Last Tuesday," says Judge Bryan in the first 
letter, "the post from New England brought sad tidings 
for some folks here. The Convention of New Hampshire. 
it seems, by 70 against, and 40 for, have adjourned till 
17*^ June. Had the final adjustment of the new system 
been put, it would have been rejected by a great majority. 
The friends of it, therefore, to let it fall easily, proposed 
the adjournment, and the others gave way. This disaster 
we consider as fatal to the business. So do its advocates 
here, and they are in the dumps, and some of the members 
of the General Convention are apologizing for their con- 
duct. Before this news came, the party was up in the 
skies, as their behavior seemed to express. Yet their suc- 
cess at Boston was so moderated by the propositions for 
amendment, which, however superficial, broke the facility 
of the new Constitution. Besides, the president of the 

^ Gazette of January 9, 1788. 



196 THOMAS SMITH 

Boston Convention, Hancock, has written to our Assembly, 
sending their doings and the amendments, and desiring 
that this state would adopt similar amendments. — On the 
whole, as New York is not likely to concur ; nor Virginia, 
tho' General W. lives there; nor Rhode Island; and as N. 
Carolina Convention meets not till 17*^ July, and will be 
much swayed by Virginia; as Maryland is much divided, 
if not on the whole against; I have no doubt there will 
be another Convention. Georgia acceded to it because 
pressed by an Indian war, and wanted aid immediately. 

"Failing," the sanguine Judge continues, "the con- 
spirators against equal liberty will have much deceit and 
wicked conduct to answer for. They have seduced the 
post-officers to stop all newspapers from state to state, 
that contained investigations of their plan, so that the dis- 
sent of the minority of Pennsylvania did not get to Boston 
before their Convention rose. Every little town furnished 
a flaming account, like those of Carlisle, Bethlehem, &c., 
asserting how much the people of their place and neigh- 
borhood approved the new plan. These were circulated 
and re-printed from Georgia to New Hampshire, with 
parade. This deceived the people into a notion that there 
was a general approbation. In Virginia, at this moment, 
from the suppression of intelligence and by false letters, it 
is generally supposed the opposition in Pennsylvania had 
vanished; and at Boston, the news of the disturbances at 
Carlisle, reaching Boston before the Convention there rose, 
the whole was confidently denied. As the Convention of 
Massachusetts was finishing, a vessel is made to arrive at 
port 15 miles off, with account that N. Carolina had 
adopted, tho' that Convention sits not before July. Again, 
as the Convention of New Hampshire was near finishing, 
this falsehood is newly published at Newport in Rhode 
Island, and another vessel pretended, to seduce another 
adoption. These are but a specimen of these arts and in- 
ventions. But a lying tongue is but for a moment. The 
people everywhere will see and feel their frauds. Yet these 
are generally the doings of the first men in many of the 
States. I say nothing of the fraud of calling Conventions 
hastily in all the New-England States, save Rhode Island, 
which has called none, in New Jersey, in Pennsylvania and 
Delaware. In the Southern States (all except Georgia) 



A JUDGE IN THE REORGANIZED JUDICIARY 197 

the calls of Conventions have been deliberate and distant; 
so in New York. I am glad of the prospect we have, be- 
cause it will prevent the danger of confusion and blood- 
shed. For if nine states had been nominally led into the 
plan, while the body of the people in many of them were 
still averse, civil war must have ensued, as the Conspira- 
tors would have endeavored to set their scheme in motion, 
without funds to support the necessary standing army. 
This danger now seems to be over, for which we ought 
to be thankful. 

"In Cumberland county," he continues in relation to 
the riots at Carlisle, "all are against it, except a small 
group in Carlisle, and a few, very few, scattered in the 
country. This small group, in October, met and censured 
their county representatives for attempting the breaking 
up of the late General Assembly, to prevent the calling 
of the people of every county east of Bedford to elect Con- 
vention in nine or ten days; with other matters favoring 
the new plan. These were paraded in the Carlisle Gazette 
as the sense of the people, and by the party published here 
and elsewhere. The county resented it, and warned these 
men not to repeat the artifice. Yet on the 25"' December 
the same people attempted to rejoice on occasion of the 
adoption by the Convention of Pennsylvania. They were 
hindered: some blows ensued. Next day the same men, 
armed, made another essay; they were overpowered, and 
the efifigies of two leading members of Convention were 
burned in contempt. Upon this, a letter with many affi- 
davits was dispatched to Mr. McKean, pressing his war- 
rants for 20 persons, charged with riots ; among others 
Justice Jordan. The business being irksome, Mr. Mc- 
Kean, alleging it was indelicate for him to act when he 
was ill-used, persuaded Mr. Atlee, and laboured me to 
send up our warrant. I represented the danger of risquing 
insult to our precept, advising delay, and the rather, as no 
hasty steps had been taken to bring the city rioters to 
justice. Mr. A. and Mr. Rush sent up their warrant. It 
lay some time in Carlisle, unexecuted, to bring the accused 
to submit and ask pardon. Nothing being done however, 
in this way, about the 26*'^ of February the sheriff was set 
to work. Eight or nine refusing to give bail, they were 
imprisoned. By the last accounts from Harrisburg, large 



igS THOMAS SMITH 

numbers were assembled, from York and Dauphin, as well 
as Cumberland, to set the prisoners at large. This gives 
much uneasiness to the Conspirators here. Even the Chief 
Justice, 'tis said, had before the news came consented to 
drop the prosecution, as the members of Council feared 
the event. But he wrote Mr. Atlee too late, if he has 
written. We hope no further mischief will ensue, tho' the 
Conspirators in Carlisle told Mr. McKean in their letter, 
they feared that their dwellings would be pulled down. 
Here, in October, we were forced to hold our tongues, 
lest well dressed ruffians should fall upon us. At this day 
the case is otherwise. Yet many are still silent, lest, the 
new plan being adopted, they might hereafter be ruined 
for opposing. Since it was commonly safe from immediate 
attack, some of us have been open and avowed, and risqued 
all the malice of these men. The common people are lat- 
terly too much of our opinion to hurt us. Indeed, none 
but gentlemen mobs have been active in Philadelphia. 

"In Montgomery," he continues, "the current of the 
county is against the plan, the friends of it are silent; 
Berks very few, who favour it ; the same in Dauphin. In 
the town of Lancaster there is a party, but few elsewhere 
in the county. In York, the opposers are very numerous. 
In Franklin they are the great body of the people. In 
Bedford and in the overhill counties very few are for it. 
Of Northumberland I can say little. Our friends in Bucks 
and Chester are much increased. The Quakers are 
changed generally. The solid Quakers here greatly dis- 
like it ; but they do not intermeddle. Their young people 
favour it, and in this city, Baltimore, New York, Boston, 
&c. there is a majority for it; most so in Boston. Shays 
insurrection has been made a great engine of terror to dis- 
pose people of that country to receive chains, if the West- 
ern counties can be kept down. Shays and his adherents 
were roused to what they did by excessive taxes ; per- 
haps contrived to dispose the New-England States to re- 
ceive the new system, to which they would otherwise be 
averse. 

"Since writing the foregoing," the letter proceeds, "we 
have accounts from Carlisle, that about looo armed men 
appeared there, and demanding of the sheriff to open the 
prison, set at liberty the persons charged as rioters, and 



A JUDGE IN THE REORGANIZED JUDICIARY 199 

burned the commitment. The inhabitants of the town, in 
the meanwhile, kept close within their houses, and the 
armed men soon went away without doing anything 
further. * * * '^ The peculiar reason why the party 
for the new Constitution is large here, is the supreme 
influence of the Bank, the weight of Mr. Morris," etc' 

During the campaign, Bryan's fellow-member of the 
High Court, Admiralty Judge Francis Hopkinson— whose 
wit and humor was a feature of the press of the day— 
miade Bryan the object of his humor, with both pencil and 
pen. Oswald's Gazetteer seemed to take especial delight in 
spreading the articles broadcast. The new Constitution of 
the State, which was bound to come, was referred to as 
"The New Roof," and Bryan, because of his supervision of 
the birth of the old Constitution of 1776, was called "Mar- 
gery, the mid-wife;" Oswald enjoyed referring to him as 
"Little Margery" thereafter. But the most interesting 
skit by Hopkinson was one based on the theory that 
Bryan, in fighting for the old Constitution, wanted to leave 
it as his political portrait, so to speak. So Hopkinson, in 
his usual allegorical style, wrote "Surveying as Applied to 
Portraiture," saying that, once, in the settlement of an 
estate he was astonished to find that the owner had left 
his land to a certain heir in such form that the specifica- 
tion, when drawn on paper, formed a portrait of the late 
owner ! With apologies to Mr. Peale and others, he draws 
an illustration, and recommends the method to the con- 
sideration of artists generally. No name was used, but 
as Judge Hopkinson vv^as no mean artist himself, the peo- 
ple instantly recognized it as a cartoon of Judge Bryan. 
Allowing for its humor, even a grandson of Bryan, who 
knew him personally, acknowledged it to be a good repre- 
sentation of the great defender of the Constitution of 'y^i. 
It is herewith reproduced from a volume of Hopkinson's 
essays, published after his death in 1792.2 

^ The Pennsylvania Gazette, March 26, 1788. Letters of Hon. 
George Bryan to Mr. John Ralston, Allen township, Northampton 
county, Pa. See Preface for Smith's account. 

^ The present generation is indebted to the thoughtfulness of 
Hon. James T. Mitchell for the identity of this cartoon. The late 
Hon. George S. Bryan, United States District Judge for South Caro- 
lina, told him some twenty years ago that there was such an article 
and portrait in Hopkinson's MSS. works at the American Phil- 



200 THOMAS SMITH 

Judge Bryan and his friends labored and hoped in vain, 
however. The new Constitution was adopted, and on July 
9 Philadelphia celebrated with a great federal procession 
of eighty-six sections, the thirteenth of which was the car 
"Constitution." On this car were seated the members of 
the Supreme Court, Chief Justice McKean and Justices 
Atlee and Rush, in their red robes of office — all except 
Judge Bryan.i The Constitution was accepted by the 
Bryan party, but they at once took measures to secure 
their amendments to it by calling a Conference at Harris- 
burg, which met September 3. It was said that this meet- 
ing originated in Cumberland county. It was noticeable, 
however, that Judge Bryan headed the list of thirty-three 
members. It is probable, too, that the amendments at- 
tributed to Mr. Whitehill were more largely due to Judge 
Bryan than to any one else. The letter already quoted and 
his remarkable leadership in this long fight of over a dozen 
years abundantly illustrate his adroitness in accomplish- 
ing important ends as a popular leader. 

The Federalist program made uninterrupted progress. 
State President Miffiin was elected in November, and 
James Wilson and others were chosen National Presidential 
Electors in January, 1789.* On February 18, the Gazette 
said: "The Constitution of Pennsylvania, says a corre- 
spondent, can be altered only in two ways, i^* By a Coun- 
cil of Censors, and 2^^ By a vote of the people. From the 
manner in which the Censors are chosen, there is no prob- 
ability that the Constitution will ever be altered by them. 
On the contrary, there is reason to believe one of their 



osophical Society; that he had seen it, and, knowing his grandfather, 
considered it an excellent likeness, allowing for the humor. The 
present writer found the original, as he had said, and, some time 
later, also found the article in Hopkinson's "Miscellaneous Essays," 
published in 1792, the article being in one volume and the cartoon 
in another, with nothing to indicate any relation between them, as 
in the original manuscript. This was liecause the several illustra- 
tions of the work were placed on one plate. It may be added that 
attempted impeachment of Judges was a favorite diversion of mal- 
contents in our early days. Judge Hopkinson was tried and ac- 
quitted, and Oswald petitioned for the impeachment of the whole 
Supreme Court. 

^ The Pennsylvania Gaaette, July 9, 1788. 

^ Dr. Smith was working, as he had been for ten years, for the 
restoration of the college charter, at this time, and soon saw his ef- 
forts crowned with success. 




George Bryan 
A Political Cartoon, by Judge Francis Hopkinsoii 
Half-tone of Engraving in Hopkinson's "Essays".- 



A JUDGE IN THE REORGANIZED JUDICIARY 



20 1 



first acts (should they ever be permitted to assemble 
agam) will be to condemn the adoption of the Federal Gov- 
ernment, and all the Federal laws that have been enacted 
under it. From the late increase of new counties, there 
can be no doubt but the anti-Federalists will compose a 
majority of the Censors. Under these considerations, will 
It not be proper, or rather will it not be the duty of the 
Assembly to recommend a Convention to be chosen next 
October, to alter the Constitution of the State. * * * 
The present Constitution of Pennsylvania never received 
the sanction or the approbation of the people. It was 
forced upon the State by a few needy men, while the best 
men in the State were in the field, opposing the enemies of 
their country." 

In March it became evident that General Washington 
was elected President. Philadelphia wished to become the 
capital. ^ "The Hall of our General Assembly," said one 
writer, "will accommodate one hundred members, with 
chairs and tables, within the bar, and that it will contain 
two hundred persons in the gallery without the bar—* * * 
the apartment above, in which the State Convention of 69 
members held their debate, is of the same dimensions, 
* * * the great Hall in the new Court House of the 
County of Philadelphia, just finished at 16,000 dollars (ex- 
clusive of the value of the lot) is capable of accommodat- 
ing 100 members, and near 500 auditors in the gallery and 
without the bar. - * * the Hall of Justice, in which our 
Supreme Courts are held, is the most spacious apartment 
of that kind in the United States," with more of like tenor.i 

On March 24, 1789, the Assembly, by a vote of 41 to 
16, recorded a vote for a Constitutional Convention, at 
the next general election, to be chosen in the same manner 
as the Assembly. The Council had a majority of one 
against it. It made no difference. The tide was Federal. 

^Although having no connection with this subject, a letter writ- 
ten at this time by Thomas Smith to Bernard Gratz, in Philadel- 
phia, dated March 9, 1789, and now in the possession of Simon 
Gratz, Esq., of Philadelphia, gives a little picture of Mr. Smith's 
participation in the sideboard customs of his time, and his apprecia- 
tion of humor. "Since I began this," the postscript reads, "I have 
drained the last bottle of the— the— the mixed (for I could not call 
it Madeira) wine ; for sending it to me, you ought never to repo.se in 
Abraham's Bosom, had it not been for the good spirits and very 
good Port Wine which you sent me, like a clever fellow." 



202 THOMAS SMITH 

April saw Washington in the President's chair, and the 
doughty FederaHsts of Pennsylvania were pushing their 
cause. The most notable opposition to the new conven- 
tion was in Cumberland county, Mr. Smith's home. The 
question was ably discussed in the press, but the argu- 
ments were little different from those made in the days of 
the Fort Wilson riots. By July, even Georgia had deserted 
the single-branch Legislature. In August the Pennsyl- 
vania Assembly took the oath of allegiance to the National 
Constitution, and this was welcomed as a sign that the 
long fight of thirteen years over the Constitution of 1776 
was nearly at an end. By September there was a much 
better feeling, as though the inevitable was accepted, and 
an election of a convention was held October 13, with 
great Federalist success. Among those elected were Hon. 
James Wilson and Thomas McKean, of Philadelphia; 
Robert Whitehill, of Cumberland ; Jasper Yeates, of Lan- 
caster, and Charles Smith (one of Thomas Smith's old stu- 
dents), of Northumberland. In December the Convention 
was at work in Philadelphia with Thomas Mifflin as Presi- 
dent of it. By March, 1790, the new instrument, which 
was destined to last down even to our own time, was 
adopted by the Convention, and, in April, Franklin died. 
From this time on the campaign for the Governorship of 
Pennsylvania, in which Mifflin and St. Clair were candi- 
dates, seems much like a campaign of the twentieth cen- 
tury. In July the people of Philadelphia were delighted 
at the settlement of the national capital question, by 
which she was again to be, not only metropolis, but capital 
of both State and nation, until 1800, when it should be 
established in the Federal city to be built on the banks of 
the Potomac. By December, 1790, President Washington 
and the national government were established again in 
the city where the latter had been created. State House 
Square was the scene of vast and far-reaching activities 
during that month. What an upheaval it was during those 
cold December days at Chestnut and Sixth streets ! With 
Governor Mifflin's election by a majority of nearly 25,000, 
and his inaugural on the 21st, the new modern Constitu- 
tion of Pennsylvania was in full operation, beside the new 
government of the United States. What a work was there 
now before judges, lawyers and law-students ! Newly 



A JUDGE IN THE REORGANIZED JUDICIARY 203 

created sources of fundamental law everywhere in 
America ! 

One of Thomas Smith's law-students, his nephew 
Charles, son of Provost Smith of the restored College 
and lately a leader in forming the new State Constitutions, 
reaHzing the situation, had applied to the trustees to open 
a Law School in the College, as Dr. Morgan had opened 
a Medical School years before. It seemed, however, the 
time was ripe for that now well-recognized interpreter of 
the new order, James Wilson, to be made a Doctor of 
Laws and inaugurate, in the midst of these December 
activities, an authoritative and extended exposition and 
defense of the new Constitutions. And this was done, 
with great eclat, at College Hall, on the 15th of that 
month, before President Washington and the leaders of 
both State and nation. 

On the 23d of December, 1790, Governor Mifflin pro- 
claimed all who then held commissions under the late Con- 
stitution as in office until further notice. This made Judge 
Bryan of the Supreme and High Court of Errors still a 
member of those benches under the new Constitution, but 
he was not destined to long survive the passing of the 
Constitution of 1776, in which so much of his life had been 
bound up. The intense fight that he had made had for 
some years past left visible marks of decay upon his 
person, but not on his clear and vigorous mind. Scarcely 
a month passed since the proclamation by Governor Mif- 
flin, when, after a short illness, Judge Bryan died, on 
January 27, 1791, at the age of sixty years. The Gazette 
spoke of him in the highest terms in its issue of Febru- 
ary 2. "The firmness of his resolutions," said the writer, 
"was invincible, and the mildness of his temper never 
changed. His knowledge was very extensive; the strength 
of his memory verified what has been thought incredible 
or fabulous, when related of others. His judgment was 
correct, his modesty extreme, his benevolence unbounded, 
and his piety unaffected, and exemplary. * * * If he 
failed in any duty, it was, that he was possibly too dis- 
interested: — his own interest was almost the only thing 
he ever forgot." Thus closed the life of the greatest power 
behind the Constitution of 1776— the man of whom, fifteen 



204 THOMAS SMITH 

years later, A. J. Dallas said: "His memory will last as 
long as liberty has an advocate in America."^ 

In a certain sense, the Constitutional conflict in Penn- 
sylvania was now ended; in a certain other sense, it was 
not. So far as the conflict of the two systems of govern- 
ment was concerned and Judge Byran's leadership of it, 
that was, of course, at an end ; but the desire of the people 
to control the judiciary, and their ultimate success, in 185 1, 
in securing their election by the people, was undoubtedly 
inherited from this long and bitter controversy. The party 
to which Thomas Smith belonged had succeeded at last, 
although the political complexion of his home county pre- 
vented him being so much of a figure in it in the closing 
contest. The leaders in the new movement, however, 
recognized the importance of his work in the long strug- 
gle. In the wholesale reorganization of both State and 
national government he was kept in mind for an im- 
portant post, but the claims of those on the ground at 
Philadelphia were numerous and well urged. The new 
Constitution made the Supreme Court commissions to ex- 
tend during good behavior, instead of for terms of seven 
years. Consequently, it soon became evident that, at the 
expiration of the term of Justice Jacob Rush, on March 
18 of this year, 1791, and of Justice William Augustus 
Atlee, on August 9, there would be a recasting of the 
court. The new Constitution provided for the erection of 
circuits or districts of from three to six counties each, 
with a President Judge at the head of each, who should 
hold courts in each county with the local Associate Judges. 
This indicated a method of taking care of the two Justices, 
who had served during the stormy time, one of whom 
was now advanced in age. As Justice Rush's place was 

'•Judge Edward Shippen resigned his post as President of the 
Court of Common Pleas and was commissioned to succeed Justice 
Bryan on the Supreme bench January 29. Prothonotary James Bid- 
die, of Philadelphia, was promoted to Judge Shippen's place. The 
Supreme Court of the United States began its sessions in Philadel- 
phia about a month later, with James Wilson as an Associate Jus- 
tice. By March, Justice Wilson was designated by the House of 
Representatives to revise and digest the laws of Pennsylvania, but 
it was not done until Charles Smith was chosen to do it. The 
reference by Dallas is in Hamilton's report of the impeachment of 
Supreme Court Judges, 1805, pp. 238-9. 



A JUDGE IN THE REORGANIZED JUDICIARY 205 

vacant first, it was filled by Justice Jasper Yeates on the 
2ist, three days after the expiration of Rush's time. 

On the 13th of April, 1791, an act was passed putting 
into elifect the provisions of the judicial features of the new 
Constitution. Five districts were created, and the High 
Court of Errors and Appeals was remodeled to embrace 
the Justices of the Supreme Court, the President Judges 
of the five judicial districts and three persons of known 
legal abilities.^ Judge Rush was slated for one of the 
President Judgeships. Mr. Smith's name had been con- 
sidered for various posts by his friends early in the year, 
and he, too, was offered one of these districts by Governor 
MifBin, although he himself had nothing to do with the 
matter. It is probable that at this time Justice Yeates 
hoped to see Mr. Smith slated for Atlee's place or the At- 
torney-Generalship ; but he seems discouraged over the 
prospect about this time, as he writes his wife, on April 
II, that "The probability of Mr. Thomas Smith coming 
down amongst us is very remote, tho' I should be ex- 
ceedingly pleased with his being near us."' His dis- 
couragement may have arisen from the claims that were 
pressed for William Bradford, Jr., who was evidently 
slated for some advancement, and who was made Attor- 
ney-General in June. On July 10, however. Justice Yeates 
wrote his son-in-law, Charles Smith, the nephew and 
student of Thomas Smith, of some further hopes he had, 
and Charles showed it to his uncle. It was evidently in- 
tended to call forth some expression, and it did: 

"Charles has just shown to me the first Paragraph of 
your Letter to him of the 10*'^ Instant," the letter reads, 
"in consequence of which permit me to communicate to 
you my sentiments on the subject of it, which I need not 
say I will do without reserve. 

"Did I think myself possessed of sufficient abilities to 
fill the office you mention, to public satisfaction & with 

^ Act of April 13, 1791. The five judicial districts were as fol- 
lows: First, Philadelphia, Montgomery, Bucks and Delaware; Sec- 
ond, Chester, Lancaster, Dauphin and York; Third, Northampton, 
Berks, Luzerne and Northumberland ; the Fourth, Cumberland, 
Franklin, Mifflin, Huntingdon and Bedford ; and the Fifth, West- 
moreland, Fayette, Washington and Allegheny. 

^ Whelen Papers. These letters indicate a warm friendship be- 
tween the Smith and Yeates families which increased with the years. 



2o6 THOMAS SMITH 

credit to myself, the objection of living in or near the 
city would be so far from weighing with me against ac- 
cepting the appointment, that it would be an inducement 
in favor of it; — I mentioned to you that the greatest objec- 
tion I had to accepting the District offered to me by the 
Governor was, that I considered myself under an implied 
engagement to remove soon to or near the city — before 
I went to the courts of Nisi Pritis, I wrote a Letter to the 
Governor, mentioning this objection, among others, to my 
accepting the appointment to this District, which I en- 
closed in one to my Brother. As he will be at Lancaster 
about the time you receive this, he can inform you what 
passed in consequence of it. 

"As the Governor very politely offered me a District, 
and signified his intention of appointing me to one which 
would be agreeable to me — I submit to you whether there 
would not be some impropriety in accepting another ap- 
pointment, should he have now made such arrangements 
as to appoint me to such District — I am totally ignorant 
whether such arrangement be made or not (perhaps my 
Brother may know) — if they are not, I could have no dif- 
ficulty on that score — if they are, I would not for the sake 
of any office or emolument, act a part which a man of 
strict honour & delicacy would condemn — besides the 
motives which would influence others in a similar situa- 
tion, I am influenced by an additional consideration — I 
have argued myself into a belief that it ought to be a 
fundamental maxim in a Republic that no Citizen ought 
to solicit for any office, nor refuse any to which the suf- 
frage of his fellow Citizens^ or the choice of those en- 
trusted with the administration, may elect or appoint him 
— by this maxim I have been hitherto guided — for I assure 
you that I never directly or indirectly since the commence- 
ment of the war, solicited any of the offices which I have 
filled; nor refused one to which I was chosen, although at 
the most gloomy periods of the war. If I am at liberty 
to accept the appointment mentioned by my worthy friend 
Mr. Lewis ^ — the next consideration is — are my legal 

^ William Lewis resigned the bench of the United States Dis- 
trict Court for Pennsylvania some time after this, so that he thought 
of Mr. Smith as his successor. Judge Yeates writes his wife on 
January 5, 1792, "Mr. Lewis has resigned his seat as Judge of the 



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A JUDGE IN THE REORGANIZED JUDICIARY 207 

knowledge & abilities equal to it?— can I fill it with repu- 
tation? — even my own vanity does not suggest that I can 
—I should enter upon it with fear & trembling & should 
I once suppose that I had accepted an office to which I 
was not equal, I should feel the most poignant mortifica- 
tion, 

"However, as you will perhaps say that this is only 
acting over again the old farce ' I will not be a Bishop '—I 
beg leave in the most undisguised & explicit language to 
say — that if I am at liberty, & you & Mr. Lewis believe 
that my abilities are equal to the task, I will be entirely 
guided by your Judgment— should you be of this opinion, 
I request you will write a confidential Letter to Mr. Lewis 
on the subject, it does not seem proper that I should yet 
write to him, as there is no intimation that I should. — 
Were I in the City, I should communicate my sentiments 
to him with the same unreserved freedom which I now 
do to you, as I have also experienced his friendship, sin- 
cerity & sound judgment, excepting in the instance now 
under consideration, wherein I am afraid that you and he 
over-rate my abilities — I am far from thinking that my 
professional success has been owing to extensive talents 
— I ascribe it more, to punctuality & attention in the dis- 
charge of every trust reposed in me — to a laudable ambi- 
tion not to be very far distanced in my acquaintance with 
professional Books — but even in this knowledge I am far 
short of my wish — you know that I have been so much 
engaged in business during the last ten years, that I have 
had very little time to devote to study, & you know that 
the studies of a Lawyer cannot be finished but with his life. 

"You have always doubted my sincerity when I have 
mentioned that I never had a wish to amass a fortune — 
that I would be perfectly contented with a competency — 
you may perhaps give me more credit, when I assure you, 

District Court, but we know not yet who will be appointed in his 
place." On the 12th of the same month, in speaking of Charles 
Smith in a letter to ]\Irs. Yeates, he says: "Tell him I have reason 
to hope that his Uncle [Thomas Smith] will be appointed Judge of 
the District Court in the room of Mr. Lewis. But this is in confi- 
dence and must not go further." — Whelen Papers. It is said that 
Mr. Lewis was the member of the Constitutional Convention of 
Pennsylvania who was responsible for its judiciary plan. — The Burd 
Papers, p. 155. 



2o8 THOMAS SMITH 

as I now do, that the smallness of the salary would be 
no objection with me, as the appointment would not, I 
presume, oblige me to live in a style above the salary — if 
it does, I would by no means accept of the office — you see 
that I write without any order — as I expect the Post every 
minute — I have not time to arrange or even to form my 
thoughts on the occasion, much less to commit them to 
writing. I beg leave to rely on your previous knowledge 
of my sentiments, inclinations & fitness for the Station ; — 
to which, adding what I have now written, I request you 
will write to Mr. Lewis in such manner as you shall judge 
proper.^ 

"I am led to believe," he adds in closing, "that the 
President has, at least, as favorable an opinion of me as 
I desire — I had finished all the business in April, with 
which he had entrusted me, I sent the last of the Money in 
May, with a statement of the whole. Just as I had written 
half the first line of this — I had the honour of a Letter 
from him in warm terms of approbation indeed. — I have 
been honoured with much correspondence with him dur- 
ing the course of the business in which I have, as well as 
verbally, received his approbation,"- 

Within two weeks after this letter Mr. Smith was in 
Philadelphia and it is believed that his friends thought there 
was a possibility of the post of Attorney-General of the 
United States for him. The Supreme Court, which had 
only been organized a few months, was then in session, and 
Mr. Bradford, Attorney-General of the State, seemed to be 
as much interested in it as any one. On August 2, they 
appeared at the National Supreme Court room in the City 
Hall, and there, before that high tribunal, Mr. Bradford 
made the motion and Mr. Smith was admitted to its bar. 
This project, if such there was, was not destined to succeed 
for some unknown reason, as Governor Mifflin was not in- 
clined to give up his program for these gentlemen. 

The high opinion of Mr. Smith held by Judge Yeates 

* Judge Yeates had evidently asked him to make the application 
himself. 

" Collection of Letters of Thomas Smith, in the possession of 
D. McN. Stauffer, Esq., Yonkers, N. Y. These letters are almost 
entirely confined to tlie period of his service on the bench. This 
one is dated Carlisle. July 18, 1791, eight days after Charles Smith's 
interview. 



A JUDGE IN THE REORGANIZED JUDICIARY 209 

was often shown in many ways, among them being quota- 
tions of his sayings. About a month after the above letter 
was written, August 13, to be exact, he writes to Mrs. 
Yeates : " I stick close to my writing & go no further than 
Mr. Smith's — 'rise early, sit up late & eat the Bread of 
Carefulness,' "i and, as has been seen, he was much inter- 
ested to see him in a position worthy of his abilities. Gov- 
ernor Mifflin, however, wished him for the President 
Judgeship of the fourth of the newly created first five dis- 
tricts, and issued his commission on August 20 {lygi),"^ 
and it was announced, among other papers, in the Inde- 
pendent Gazetteer of August 2y, that William Bradford, Jr., 
was appointed to the Supreme Bench, that Jared Ingersoll 
had been given his place as Attorney-General of the State, 
and that the President Judgeships had been assigned as 
follows : To the First, Hon. James Biddle ; to the Second, 
ex-Justice William Augustus Atlee ; the Third, ex- Justice 
Jacob Rush, a brother of Dr. Benjamin Rush; to the 
Fourth, Hon. Thomas Smith, and to the Fifth, Hon. Alex- 
ander Addison.2 These were all strong and eminent men; 

^ The Whelen Papers. 

*The commission is preserved among the De Renne Papers. 
On the back the various Recorders vouch for its being recorded as 
follows: At Carlisle on September i, 1791 (Book I, Vol. I, p. 521) ; 
at Huntingdon, September 5 (Book B, p. 88) ; at Chambersburg, 
September 13 (Book B, p. 323) ; at Bedford, October 12 (Book C, 
p. 496), and at Lewistown, December 12 (Book A, p. 146). The 
seal has on the reverse side the famous "Both Can't Survive" em- 
blem. 

' Judge Smith was a friend of Addison, who was also a Scotch- 
man. In a letter of June 17, 1793, to Dr. Peter Smith he makes this 
interesting comment on him: "* * * Alexander Addison, Esq., 
who came from Banf, or rather I think from a town nearer the 
mouth of Dovern : he has been a very lucky fellow indeed — he came 
into this country with Dr. Nesbit about 8 or 9 years ago; bemg 
educated at Aberdeen for a Presbyterian clergyman— he was not or- 
dained but was licensed to Preach by a Presbytery over the Moun- 
tains, and settled there to his satisfaction— but because he was lib- 
eral in his sentiments — the bigoted and narrow minded Presbytery 
refused to ordain him, though the people were pleased; and havmg 
sent to the place of his nativity for the Lady to whom he was en- 
gaged, & the charge of a family coming on, the wretches sought 
to starve him into hvpocrisy; but having a vigorous mind, he be- 
took himself to the study of the Law with the utmost diligence, un- 
der the direction of a gentleman of eminence— having a clear and 
logical head, he soon made progress— the gentlemen of the Bar see- 
ing & feeling for his situation, took him by the_ hand & on our 
joint recommendation, he was, on my motion, admitted an attorney, 
in consequence of which he was soon chosen a member of the Con- 



2IO THOMAS SMITH 

Judge Atlee was getting somewhat advanced in years, but 
the rest were in their prime. 

Judge Smith was now almost exactly forty-six years 
of age and his equipment for the post unquestioned. His 
wisdom and his conscientiousness, as well as his excellent 
preparation in land law, made him peculiarly fitted for the 
work of the Common Pleas Court at a time when higher 
standards of learning in the law were being established. 
The districts of Pennsylvania have never had a more uni- 
formly strong set of Presidents than at this period. Of 
Judge Smith, his latest successor at the head of the Cum- 
berland courts, Hon. Edward W. Biddle, says: "Thomas 
Smith was both talented and industrious, and after a care- 
ful study of the careers of the long line of judges who have 
succeeded him in this district, I cannot name one whom I 
deem to have been his superior." ^ 

The family of Judge Smith had grown apace in three 
years at Carlisle also. In addition to his daughter Eliza, 
three other children had been born — all girls. Maria was 
born on May lo, 1784, and on November 10, 1787, one 
came who was given the name Williamina Elizabeth. To 
this group of children of nine, seven and four years respect- 
ively, there had been added another on December 8, 1789, 
Juliana, now a babe not two years old. Like most men 
without homes of their own for much of their earlier years, 
Judge Smith was intensely devoted to his, and the time 
had now come when the amount of absence from it, caused 
by his great practice, could be reduced. The court at 
Carlisle had far the larger business of the then live large 
counties of the Fourth District ; all of them were accessible 
with comparative ease for those days, so that he was at no 
time long absent from home, or far from it when he was 
absent. For while his district covered the vast territory 
now included in Cumberland, Franklin, Perry, Juniata, a 
large part of Mifflin, most of Centre, part of Clinton, half 
of Clearfield, Huntingdon, Blair, Cambria, Somerset, Bed- 

vention where he distinguished himself — He is now President of 
the Courts over the Mountains, with a salary of £500 a year, our 
money, whereas had he proceeded in his first views, he would have 
hardly expected £150. I mention him as an example of diligence 
& perseverance, aided by a proper education, strength of mind & 
prudent deportment." — De Renne Papers. 

* Letter to the author, dated June 15, 1903. 



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A JUDGE IN THE REORGANIZED JUDICIARY 211 

ford and Fulton — nearly a fourth of the State, the only 
places he was compelled to hold court were Carlisle, Lew- 
istown, Hunting-don, Bedford and Chambersburg. In 
population, Judge Smith's was the smallest of the five dis- 
tricts, containing about 56,000 people, while Judge Atlee's 
district contained over 120,000.1 In fact, the Fourth Dis- 
trict was about the size of the present Beaver district. 
This division was so natural that it remained unchanged in 
number for about fifteen years. 

Judge Smith received his commission before September 
I (1791), on which date he had it recorded at Carlisle while 
the court was in session, although there is no evidence 
that he took his seat that term, which closed on the 27th 
of the month.2 He seems to have gone directly to Hunt- 
ingdon, where his commission was recorded on the 5th of 
September. Here were some of the earliest scenes of his 
surveys in 1768 about the old standing stone — twenty- 
three years before. The court had only been organized in 
March, 1789, scarcely two years before, and while his for- 
mer student, Charles Smith, already had considerable 
practice there, the Judge seems never to have had any. 
It was the first Tuesday in September, and as there was no 
court house yet, the courts, which at first had been directed 
to be held at Ludwig Sells' house, were held in a tavern 
kept by a Mrs. Haines, down on what is now Allegheny 
avenue, in the region east of the present depot and facing 
the river. It Vv^as not uncommon in such cases to divide 
the tavern barroom into two parts with a pole, thus mak- 
ing a "bar" at both ends of the room. Here were gathered 
Attorneys Hamilton, Brown, Biddle, Cadwallader, Wal- 
ker, Nagle, Orbison and Patterson — most of whom had 



^The Fifth was next, with about 63,000; the Third followed, with 
over 76,000; then came the Philadelphia district, with over 112,000, 
and lastly the largest, the Second, or Lancaster district, with over 
120,000. Those were days when Philadelphia county had only about 
54,000 people and the entire State but 434,373- There are now fifty- 
six districts. 

^His oath of office, taken the same day and signed, was: "I, 
Thomas Smith, Esquire, do swear that I will support the Constitu- 
tion of the United States and the Constitution of this Common- 
wealth of Pennsylvania: and that I will perform the duties of my 
office of President of the several Courts of Common Pleas in the 
circuit consisting of the counties of Cumberland, Franklin, Bedford, 
Huntingdon and Mifflin with fidelity. Thomas Smith." 



212 THOMAS SMITH 

often felt the force of the judge as an antagonist before 
the bar. There were but twenty cases on the continuance 
docket, the only one then kept there, so the session was to 
be short. Hamilton, Cadwallader, Biddle and Brown had 
most of these. Judge Smith and Associate Justice John 
Canan were on the bench. Among the auditors on one oc- 
casion, possibly on this one, it is said, there was a chain- 
carrier, Pat Leonard by name, who had served with the 
Judge in his surveyor days in all the intimate familiarity 
of camping out together in wild, new territory for weeks at 
a time. Pat had evidently found "Tom" Smith a good 
fellow and appreciated his new honors, although not the 
dignities which the Judge conceived belonged to the 
bench of justice. So just as the Judge was about to charge 
the jury Pat made his way to the farther "bar," secured a 
bowl of punch, and, making for the bench with it in the 
easy familiarity of the old days, he accosted the Judge 
with : " Here, Tom, take a bleer of this before you charge 
the jury!" The astonished son of Erin was instantly 
charged with contempt of court, and ordered to the little 
puncheon jail near at hand to meditate for a few hours on 
the difference between a transit and the scales of justice.^ 

From here he seems to have returned home and gone 
to Chambersburg, Franklin county, where his commission 
was recorded on September 13, but the destruction of the 
records of that court, previously mentioned, prevents any 
view of his work there. On the second Tuesday in Octo- 
ber, however, he and his associates opened court on the 
second floor of the old stone court house of 1774, at Bed- 
ford, which had been the scene of so much of his varied 
experience since his settlement there over a score of years 
before. There were a few more cases here than at Hunt- 
ingdon — twenty-nine in all — and many of the same lawyers. 
Woods and Nagle had the greater number of cases, and 
there were St. Clair, Riddle, Charles Smith, who no doubt 
took some of his uncle's former practice ; Dunlop, Hamil- 
ton and Riddle, who was to succeed Judge Smith in the 
near future. The session was short. 

"At a Countv Court of Common Pleas held at Carlisle 



^Centennial History of the Bench and Bar of Huntingdon 
County, by Theodore H. Cremer, p. 5, 18S7. 



A JUDGE IN THE REORGANIZED JUDICIARY 213 

for the County of Cumberland the nineteenth day of Oc- 
tober," reads the docket of the first court held at his home 
town, Judge Smith addressed the grand jury and the offi- 
cers of the court, adding: "Let us conclude, by impressing 
on the minds of all our fellow-citizens, of every class, 
whose duty it is to attend at court, that it is only by our 
united exertions, in practical, diligent and faithful dis- 
charge of the duties of our several stations, that the real 
dignity of the court can be supported and justice admin- 
istered to the satisfaction of the public." As one of the 
attorneys then said: "May it please your Honors" — in- 
tending to make a motion, the Judge requested him to 
postpone it a moment. "The gentlemen of the Bar," said 
he, "frequently use this expression in addressing this 
court; but the appellation not being given to us by the 
Constitution or Laws of the Country, it will be agreeable 
to the court if you decline giving it in future. The expres- 
sion 'This Honourable Court' has indeed crept into one 
of the Acts of our Assembly ; — should that form of address 
be used in other circuits, we shall not say that it is imi- 
proper. For, as on the one hand, it would be false mod- 
esty or rather false pride, under the mark of modesty to 
refuse any titles given by the Constitution or the Laws; 
so on the other, it would disclose uninformed minds, 
should we arrogate to ourselves appellations not given by 
either. If we possess sufificient legal abilities and an inti- 
mate and accurate knowledge of the practice: — if we ad- 
minister the Laws with decision, dispatch and rigid in- 
tegrity: — if we consult and promote the real permanent 
interests, and social happiness of our fellow-citizens, as 
far as in our power in our present station, they will re- 
spect us without any titles : But should we appear unequal 
to our ofifice — should we betray the want of legal abilities, 
or should our judgments be bad or influenced by our af- 
fections, or passions, or by any personal or party consid- 
erations, no titles or appellations, however pompous, could 
secure to us the respect of an enlightened people. 

"We beg leave on this occasion," he continued, "to 
point out another impropriety, of which I was guilty as 
any of you when I was at the Bar, although I scarcely ever 
was in the other instance : — the gentlemen, in whose favour 
the court gave judgment, generally rise and thank the 



214 THOMAS SMITH 

court. We request that you will discontinue this practice ; 
were the counsel on the other side to say, zvc blame the 
court, the expression would certainly be thought improper 
— the one indeed flows from politeness, the other would 
be looked upon as rude ; in every other point of view they 
are equally exceptionable. We must give judgment ach 
cording to Law — we could not give it otherwise than we 
do, to gain the applause or to shun the censure of millions. 
We must be actuated by considerations infinitely higher 
than the applause or censure of men. God forbid that any 
of the parties in this court, or in any other courts I sit, 
should ever have it in his power to say, with truth, either 
that he has a friend or an enemy on the Bench." ^ 

Judge Smith and his associates, who were Justices of 
the Peace, opened the session with a case in which Robert 
and Thomas Duncan were opposing attorneys. Watts and 
Creigh had the most cases, and the fourth was a suit for 
Judge Yeates, conducted by Charles Smith, with Thomas 
Duncan for the defendant. It was a long session, with 
eighty-three cases on the docket — two of them being cases 
in which the Judge himself had been attorney. The law- 
yers were all readmitted — James Riddle, Andrew Dunlop, 
Thomas Hartley, David Watts, Thomas Nisbett, Ralph 
Bowie, Thomas Duncan, Thomas Creigh, Robert Duncan, 
Jonathan Walker, Charles Smith, George Fisher, James 
Hamilton, David McKeehan, James Smith, Joseph Hubley 
and James Hunter. Thomas Duncan had the largest prac- 
tice, although it must be admitted Hamilton and Watts 
were not so far behind. Duncan afterward became a 
member of the Supreme Court, succeeding Judge Yeates. 
This was a long session, and must have lasted nearly into 
December. 

The next court, for some reason, was held on the first 
Tuesday in December, 1791, at Huntingdon, but it was a 
short session, and may have been called in order to allow 
a more continuous session at Lewistown, Mifflin county, 
where certain local members of the bench were getting 
into trouble. Richard Smith, a nephew of the Judge, was 
admitted at this court on the examination of Messrs. 



*The Carlisle Gazette and the Western Repository of Knowl- 
edge of October 26, 1791. 



A JUDGE IN THE REORGANIZED JUDICIARY 215 

Riddle and Hamilton. There were but twenty-one cases. 
Justices David Stewart, Hugh Davidson, Robert Galbraith 
and Benjamin Elliot sat with Judge Smith. Cadwallader 
had more cases than any one else, and young Smith had 
no fewer than eight. Hamilton, Brown and Riddle had 
rather more than the rest. Samuel Riddle was admitted. 
During the cold days of mid-December Judge Smith 
started for Lewistown, down the Juniata, where the Mifflin 
courts, as has been said, were in trouble. If the visitor 
to that beautiful region now will glance at the present 
county prison and imagine a two-story dressed-log struc- 
ture taking its place, the doors facing on the cross-street, 
he will have some idea of the structure which was erected 
in 1790, the year before, for a combined court house and 
prison, the lower story in such cases being the prison.^ 
This old building came very nearly being the scene of a 
bloody riot the term before, the first term under the new 
commissions, and one which the new President Judge 
had not attended. The afifair was a rehc of the war. It 
seems that one of the newly appointed Associate Justices 
was the ex-County Lieutenant of the Revolution, Samuel 
Bryson, who, it w^as claimed, had refused to commission 
two Colonels elected by their respective regiments. When, 
on September 12 (1791), three of the Associate Judges 
met and organized the court, the members of these two 
regiments determined that Mr. Bryson should not serve 
on the bench. The next day they assembled in arms on 
the Juniata and, under the direction of Wilson, a brother 
of the Sheriff, marched on the court. Judge James Arm- 
strong met them on the stairway and exclaimed: "You 
d d rascals, come on! We will defend the court our- 
selves, and before you shall take Judge Bryson you shall 
kill me and many others, which seems to be your inten- 
tion and which you may do." A parley, however, con- 
ducted largely by the Deputy State Attorney, John Clarke, 
led to a compromise, by which Judge Bryson was to leave 
the court for the present term and the rioters were to 



^ The structure stood until about 1802. The courts were held in 
it, however, but a short time after the close of Judge Smith's ser- 
vice. The view of it here given is from a cut published in the 
Lewistown Gazette. 



2i6 THOMAS SMITH 

petition the Governor. The Sheriff himself had to be 
locked up, at the order of the court, in the prison-room 
below, and another riot was threatened to release him, 
when a compromise was effected by letting him out. A 
regiment under Colonel McFarland came to town and 
offered to defend the court. One element of the difificulty 
was that one of the Justices, Judge Beale, refused to sit 
on the same bench with Judge Bryson, but the court finally 
finished its business and adjourned. The proposed collec- 
tion of the tax on spirits made the rioters still more hard 
to deal with, but with the close of the court the matter 
was quiet until the next term.^ 

These troubles were taken into court at the December 
term, and it made so busy a session, with the other work, 
that it ran, by adjournment, into January, 1792. There 
were sixty-three cases in all. The case of the State against 
George Wilson, Thomas Beale and Thomas Wilson was 
handled by Hamilton for the former and Duncan for the 
defense, and the one brought by Samuel Bryson against 
George Wilson was tried by the same attorneys, with 
Nesbit aiding the prosecution. Practice was pretty well 
scattered at this session; Walker, Anderson, Hamilton, 
Duncan, Nesbit, Patterson, Cadwallader, Robert Duncan, 
Fisher, Clarke and Watts were all about equally busy. 
Judge Smith did not sit at the adjourned session. 

It is not clear just when the FrankHn courts at Cham- 
bersburg were held, but the schedule seems to have been Car- 
lisle, Huntingdon, Bedford, Chambersburg and Lewis- 
town, except when work was too great at Carlisle. At 
any rate, the courts at Carlisle were held the first Monday 
in January, 1792, before Judge Smith and his associates, 
with no fewer than eighty-eight cases on the docket. It 
was plain that the Associate Justices at Huntingdon would 
have to hold the court called for the third Monday in that 

^ From an account of the affair by the Deputy State's Attorney 
in "The Susquehanna and Juniata Valleys, Pennsylvania," Vol. I, 
p. 461. The introduction to the letter is inaccurate in stating that 
this occurred at the last court under the old order, or that Judge 
Smith was soon after appointed President Judge. It was the first 
term under the new order, and Judge Smith had been appointed, as 
has been seen, some time before this court met; but he did not meet 
with them at this session. 




CoiRT House at Lewistovvn 
ill which Thomas Sniilh sat as Judge 



A JUDGE i IN THE REORGANIZED JUDICIARY 217 

month alone, and they did.^ Thomas Duncan had a tre- 
mendous practice at Carlisle, being actually engaged in 
forty-eight out of the eighty-eight cases. Hamilton came 
next with twenty-eight, while Watts, Charles Smith, Dun- 
lop, Sample, Hubley, Fisher, Robert Duncan, McKeehan, 
Creigh, Riddle and Walker were also busy. 

On the fourth Monday in January he was in Bedford, 
holding court in the second story of the old stone build- 
ing. There were but fifteen cases before him and his asso- 
ciates, and these were divided pretty evenly between 
Nagle, Cadwallader, Hamilton, Biddle and Woods. One 
peculiarity of the records of this court is that they appear 
to be in the hand of the Judge himself. "Owing to the 
fact," says his latest resident successor, Hon. J. H. Longe- 
necker, "that in the years of his term in this district our 
county was so newly and sparsely settled, the volume of liti- 
gation was not great, and it generally involved land disputes. 
Ejectment was by far the most frequent form of action. 
This is a branch in which Judge Smith appears to have 
been peculiarly well equipped. All business of the courts, 
civil and criminal, seems to have been quickly dispatched 
and the dockets promptly cleared in Judge Smith's time, 
and I infer from the information which can now be gath- 
ered in a search of the records, that he was not only a 
jurist of superior legal attainments, but that he presided 
over his courts with fine executive ability and tact. One 
cannot look for an hour over the records of cases tried 
during that time without realizing that there was a thor- 
oughly competent and efficient Judge on the bench."* 
Judge Smith did not return for the next term, but left the 
cases to his associates, because of the amount of business 
at CarHsle and Lewistown. 

Omitting the Franklin courts, which probably came 
next, the President Judge held his next court at Carlisle, 
where the great number of one hundred and thirteen cases 
awaited it. Thomas Duncan had far the larger number of 
cases, as usual, and the bar was much the same as before, 
except in the admission of James Duncan and Thomas 
Elder. Some of this work must have been left to his asso- 



^ There were only seventeen cases, and Cadwallader had the 
most of them. 

* In a letter to the author. 



2i8 THOMAS SMITH 

dates, for on the loth of April he opened the court at 
Lewistown, where there were seventy-one cases entered.^ 
It was evident that Carhsle and Lewistown courts led in 
amount of practice, omitting Chambersburg, of which we 
have no record. At this time there were an unusual 
number of important cases engaging several lawyers; 
Hamilton and Anderson were arrayed against Thomas and 
Robert Duncan and Patterson in several cases, as were 
Walker and the two Duncans against Nesbit, Hamilton 
and Cadwallader. Patterson, Watts, Nesbit, Ingersoll and 
Anderson were especially busy men. So, indeed, were 
Watts, Richard Smith and others. Judge Smith must also 
have left much of this work to his associates, for he was 
at Huntingdon the third Monday in April with a full court 
and thirty-one cases before them. Cadwallader and Rich- 
ard Smith had more cases than other lawyers, although 
Hamilton was a close third. 

The August terms found him in all the courts. Those 
at Carlisle opened on the first Monday, with a docket of 
one hundred and forty cases — the largest list yet before 
him. Of course, Duncan led, as usual, but there was 
plenty of business for them all, and some new names be- 
sides. J. A. Hanna appears, and Kittera, Graydon, Car- 
penter, Wallace and George Smith. The 14th of August 
he was at Lewistown, and the forty-six cases necessitated 
an adjourned court, which Associate Judges Armstrong 
and Bryson held in September. These cases were well 
distributed among a large number of the old attorneys. 
On the third Monday he was at Huntingdon, where the 
docket was larger than usual — fifty-five cases. Richard 
Smith was growing in prominence at this bar, but nearly 
all the lawyers of the district had cases this time, except 
the Duncans: Ingersoll, Cadwallader, Walker, Hamilton, 

^ On April 8 he wrote Judge Jasper Yeates, in which he says : 
"The sun is up — it is a beautiful morning — I am just going to set 
ofif for Mifflin court." It is evident, according to this letter, that 
Charles Smith was taking the practice of Judge Yeates, for Judge 
Smith says of him, he ought to get up earher, as should one of 
Judge Yeates' old-time German clients find it out, he would say: 
"Mashter Yeates til nefer lie in ped so long unless when he hat 

peen playing carts or te last night." Judges Smith and 

Yeates were quite accustomed to this badinage with one another. 
He added some in the same line on the infection of the desire abroad 
to speculate in bank stock. 



A JUDGE IN THE REORGANIZED JUDICIARY 219 

Riddle, Orbison and Brown. Clark, Robert Duncan and 
Thomas Nesbit were admitted. On the fourth Monday 
of August he was at Bedford, and it was becoming more 
and more evident that most of the lawyers of the district 
practiced in each court. Henry Woods had almost as 
good a practice as Justice George Woods once had, and 
Nagle had more cases here than elsewhere in the district, 
but Hamilton, Riddle, Dunlop and Cadwallader had about 
as large a proportion of the thirty-seven cases on the 
docket. 

The fall terms began with a full court at Carlisle the 
first Monday of October. There were eighty-three cases 
before them, and, from the number in which a certain 
family appears, it could properly be called a Duncan court, 
for Thomas, Robert and James Duncan had a large pro- 
portion of the cases. Watts and Hamilton came next, and 
Charles Smith and others had a fair share. In November 
there were thirty-six cases at Huntingdon, and the courts 
at Lewistown and Bedford were full. A letter, dated about 
this time and written to A. J. Dallas, Secretary of the 
Commonwealth, refers to a case before him and says of 
a certain man : " He has too much sense to expect that 
I can so far overlook the duty which I owe to the station 
in which I am placed, as to decline prosecuting the de- 
lendant, even if he were my own son."^ 

Among the few references to precedents established 
in Judge Smith's courts is the following interesting one 
from Justice Charles Huston of the Supreme Court: 
"When I was reading under the late Judge Duncan, we 
had no book on the laws of this state, but i Dallas Re- 
ports. I was very anxious, among other things, to learn 
something of our practice. Thomas Smith, Esq., after- 
wards a Justice of the Supreme Court, was President 
Judge at CarHsle. I understood that while justices of the 
peace presided in the Common Pleas, there had been a 
difficulty as to opening judgments confessed on warrants 
of attorney. He established the practice that on an affi- 
davit of the defendant stating a fact or facts, which if true 
amounted to a defense to the whole or part of the judg- 
ment, and concluding that there was a just defense to the 



^The Gratz Collection. Dated October 9, 1792. 



220 THOMAS SMITH 

whole or part, a rule to show cause why the judgment 
should not be opened must be granted; and if the facts 
were proved by a disinterested witness, the judgment must 
be opened; and no contradicting evidence was to be re- 
ceived, because the court could not decide on disputed 
facts — for this purpose a jury was absolutely necessary. 
After I was admitted to the bar, I practiced under Judge 
Rush, Judge Riddle, and Judge Walker; and presided as 
judge nine years, and never knew of any other doctrine 
in that district."^ 

Late in this year, 1792, came the beginning of trouble 
in central and western Pennsylvania over the tax on 
whiskey, which culminated in the rebellion two years 
later. Governor Mifflin had written Judge Smith about 
it, enclosing the President's proclamation, and on De- 
cember 10 he sent the following reply: "I received your 
letter of the 5* of October, inclosing the Proclamation of 
the President, respecting the proceedings contravening the 
Laws for raising a revenue from spirits distilled within 
the United States. I did not think it necessary, merely to 
acknowledge the receipt, till I could inform you what I 
had done in consequence of it. 

"I take it for granted that you did me the honour of 
writing to me, rather from your warm attention to the 
welfare of this State, in particular, and of the United 
States, than from any apprehensions that I am not fully 
convinced of the necessity of inculcating on the minds of 
the people, the indispensable duty of obedience to the Con- 
stitutional Laws of the Union and of this State. So firmly 
convinced am I that the lasting happiness of the people in 
every State, and the duration of the Union, depend essen- 
tially on a due obedience to the Laws, especially in this 
early period of our national existence, that I should have 
been guilty of a criminal inattention to both, had I not, 
on every proper occasion, since my appointment to my 
present ofhce, inculcated this duty as indispensable, with- 
out the performance of which, our liberties cannot be pre- 
served. Under this impression, I have hitherto acted ac- 
cording to the best of my judgment and abilities. 

"I had nearly finished writing the introduction to the 

^ Watts and Sergeant, 284. 



A JUDGE IN THE REORGANIZED JUDICIARY 221 

technical part of my charge to the Grand Jury, for the 
November Term, when I received your letter; although 
I had anticipated, in substance, your recommendation in 
that, and in every other charge which I have hitherto 
given, yet I was led by duty, and perhaps by a little vanity, 
to introduce an extract from that letter; because the senti- 
ments of the President of the United States, and those 
of the Governor of this State, coinciding with those I 
had delivered, would give mine a weight which would 
claim much greater attention from those to whom they 
had been addressed and from the good people in the cir- 
cuit in general,^ than of themselves, they would deserve. 
I also esteem it not a little honour to myself, in having 
anticipated the sentiments of two such distinguished char- 
acters, one of whom deservedly enjoys the confidence of 
the People throughout the Union, and the other, that of 
the citizens of Pennsylvania. 

"By the appointment of Dr. Armstrong to Congress," 
he continues, *"I shall lose a valuable associate in Mifflin 
county; possessing firmness, honour and strict integrity, 
invested with a sound judgment, he contributed not a little 
to restore and preserve peace and good order in that 
county. I am afraid it will be difficult for you to appoint 
another of equal worth to succeed him. I have heard Col. 
Patton mentioned; I have not the pleasure of a personal 
acquaintance with the Gentleman, but from the character 
which I have uniformly heard of him, I would not wish 
a better man. * * * ."' 

Enough has been said to indicate the character of 
Judge Smith's various courts in amount of practice and 
the personnel of the various bars. The business of 1793 
was even heavier than before, but there were no essential 
changes in the character or personnel of the practice. 
There were usually above a hundred cases at Carlisle, 
and eighty at the January term of 1794, the last of his 
service on that bench. Unfortunately, but one of his 



^Pennsylvania Archives, Second Series, Vol. IV, p. 46. The 
tax on all distilled spirits under the law of Congress of March 3, 
1791, drew forth a public meeting for protest at Redstone, Old Fort, 
the following July 27. The difficulties continued until the Rebellion 
early in 1794. 

2 The Gratz Collection. Dated October 9, 1792. 



222 THOMAS SMITH 

charges, and none of his opinions on this bench, have 
come down to us, as there have been in the case of Judge 
Rush; but it is sufficient that leaders like Judge Yeates 
and others looked upon this position as but temporary, 
and upon him as fitted for a seat in a United States Court 
or the State SupremxC bench. 

During this period, it must not be forgotten, he was 
not only President Judge of the Fourth District, but was, 
by virtue of that position, a member of the highest tribunal 
in the commonwealth, higher even than the Supreme Court 
itself. This was the High Court of Errors and Appeals — 
a last court of appeal — which was conceived necessary 
after the Revolution began, to take the place of appeal to 
the King in Council. At its creation in 1780, it had in- 
cluded the President of the State, the Judge of Admiralty, 
the members of the Supreme Court and "three persons 
of known integrity and ability" — which soon meant, so far 
as two were concerned, such men as Henry Wynkoop of 
Bucks and Samuel Miles of Philadelphia. When the Con- 
stitution of 1790 came to deal with this court, however, 
some important changes became necessary. None of its 
members were retained except Chief Justice Thomas Mc- 
Kean, who had been a part of it from the first, and Judges 
Shippen and Rush. The separation of the executive and 
judicial functions in the new Constitution prevented the 
Governor being a member as before, and as admiralty 
matters were now national, the Judge of that court was 
not included. So the Constitution provided that the High 
Court should consist of members of the Supreme Court, 
President Judges of the five judicial districts and "three 
persons of known legal abilities." The new court met, as 
the law provided, in Philadelphia, on November i, 1791, 
for that year's session. Heretofore the executive of the 
State had been the presiding officer, although, in fact, Chief 
Justice McKean had presided at all but four sessions ever 
since 1785. It was now desired to emphasize the appeal 
character of this court as more distinctly above the Su- 
preme Court, and in order to do so a distinguished "person 
of known legal abilities" was elevated to the Presidency 
of it, namely, the well-known ex-Chief Justice of ante- 
bellum days, Benjamin Chew. This first session of the 
court saw present only President Chew, Chief Justice Mc- 




The IIii.ii Court of Errors and Appeals of Pennsvlvania in i7qi 
except Judge Jacob Rush 



A JUDGE IN THE REORGANIZED JUDICIARY 223 

Kean, Justices Shippen and Bradford, and one President 
Judge, James Biddle of Philadelphia. Judge Smith was 
not present at this session, nor at that beginning March 30, 
1792, but when the court opened July 9 of that year at the 
State House, Judge Smith was present in the largest court, 
probably, that had ever assembled in the commonwealth! 
There were President Chew, Chief Justice McKean, Jus- 
tices Shippen and Bradford and President Judges Biddle, 
Rush, Smith and Addison. There is every probability that 
this court sat in the Supreme Court room — the west lower 
room of the State House, where they sat in 1787, and as 
we know they sat in this building in January of this year, 
there is little doubt that it was in this same room, the one 
in which Judge Smith had experienced so many of the 
most important events of his life.i Before the court ap- 
peared such men as Tilghman and Duponceau. The ses- 
sion lasted from July 9 to the 13th, inclusive. 

In a letter to a gentleman in Baltimore, dated May 17, 
1792, Judge Smith, after speaking of his own illness from 
a siege of influenza, says: "I am to inform you that the 
High Court of Errors and Appeals met agreeably to the 
special act of Assembly, which I mentioned in my last; 
but could not make a court in this cause, because Mr. 
Yeates & Mr. Bradford had been Counsel and could not 
sit, & the Presidents of the Circuit did not attend — had I 
attended I could not have sat as Judge, as I had been 
Counsel below. — The stated time of holding that Court 
is the 2''^ Monday in July — at that time the Presidents of 
all the Circuits will attend — two of them having been 
Judges of the Supreme Court,- were Judges of the High 
Court of Errors & Appeals when this cause was before 
argued before that Court. — Had not such uncommon de- 
lays happened in this cause, I could almost venture to 
assure you that it will be [decided?] then; but I will only 

^January 10, 1792, Judge Yeates wrote his wife: "I write you 
in Court surrounded by a multitude of merchants. Tho' personally 
in the State House on a Bench of Justice, my Feelings and Af- 
fections rest in your Parlors. I am carried beyond myself and I 
think I shall never much mend as a Judge in this particular." — 
Whelen Papers. It is a happy conception which is now making this 
room the seat of a collection of portraits of the Justices of the Su- 
preme Court who sat in the old State House. 

^Judges Atlee and Rush. 



224 THOMAS SMITH 

say that I intend to be at that Court although I do not 
choose to sit in this Cause — either I or Mr. Lewis will 
give you immediate notice of the result from thence," ^ 

After that year and a session in January, 1793, the 
Court confined itself for some time to the July sessions, 
the only ones which Judge Smith attended up to 1794. Up 
to that time, too, there were no changes in the legal mem- 
bership of the court, except by the death of Judge Atlee, 
September 9, 1793; although, in fact, he did not attend at 
all after he became President Judge of the Second Dis- 
trict. The session which began July 8 of this year, '93, 
was the last one Judge Smith attended by virtue of his 
being a President Judge; and it happens to be the one in 
which occurred the earliest opinion delivered by him, 
which has been preserved. While it is not the purpose 
here to consider Judge Smith's work on the bench of any 
court, and especially on those of the higher courts, as rep- 
resented by the comparatively small number of about 
eighty expressions, opinions or charges that have come 
down to us, in a technical or professional way, there may 
be seen by a glance at certain parts of a few of them in 
the proper place certain interesting mental, moral and other 
characteristics of the distinguished Judge. 

It was not uncommon in those days for the various 
members of the bench of the higher courts to each give 
full expression of his opinions. In this case,^ which 
came before the High Court from the Supreme Court, 
where it was argued by Moylan, Mifilin, Ingersoll and 
Lewis on the one side and Duponceau, Coxe, Sergeant 
and Rawle for the defendants in error, there were very 
full opinions given by Chew, Biddle, Rush, Smith and 
Addison, Judge Smith's, shorter than some of them, oc- 
cupying nearly twelve pages. The case referred to the course 
taken by a captain of a wrecked vessel in regard to a quan- 
tity of silver, before the old Court of Admiralty in Judge 
Francis Hopkinson's time. "By the laws of nations," says 
Judge Smith, in answer to the claim that the Admiralty 
Court had no jurisdiction, "one nation is bound to per- 
form those duties and offices of humanity to another 

^ Letter in the Charles Roberts Collection at Haverford College. 
^ Lacaze et al. vs. Pennsylvania, to use of Lanoix. i Addi- 
son, 53. 



A JUDGE IN THE REORGANIZED JUDICIARY 225 

nation (and consequently to the individuals composing 
it) which the safety and advantage of that society require. 
These duties of humanity are to be performed by the State 
toward strangers. But if the law of nations antecedent 
to treaties should be supposed not expressly to inculcate 
this principle nor require one nation to perform this duty 
to another, it is enforced by the 18*^ article of the treaty 
of amity and commerce between the United States and 
France," quoting the reference. To this he adds refer- 
ence to those of the United Netherlands and Sweden, con- 
tinuing with "The article above recited in the treaty with 
France must be construed to be as extensive in this in- 
stance as the enumerated articles in the treaties with 
the United Netherlands and Sweden. At least a narrower 
construction would have a very ungracious sound in Euro- 
pean ears, and would be, in fact, contrary to the law of 
nations and to the spirit of that treaty made with us by 
our first and best friend, by whose friendship our national 
existence was preserved. 

"The nation being, then," he continues, "bound by the 
spirit of the treaty and the law of nations to give this 
assistance and relief, how can it give them but through its 
courts, and which court so proper to take cognizance of 
this maritime transaction as the Court of Admiralty? Was 
not this court therefore bound, upon demand of the Cap- 
tain, to take charge and cognizance of the silver so saved? 
If the Admiralty be the most proper court by which this 
office and duty of humanity, this article of the treaty can 
be performed, it necessarily follows that this court can 
take stipulations from the parties to perform all legal and 
necessary orders and decrees which it may make in the 
performance of its duty — the exercise of the jurisdiction 
with which it is for this purpose necessarily invested, and 
the common & law courts have no right to prohibit it 
from enforcing its sentence. * * * The parties came 
voluntarily into the Court of Admiralty, and on entering 
into the stipulation obtained the silver, and surely they 
shall not be permitted to deny the effect of that engage- 
ment of which they have reaped the fruits." ^ It is inter- 
esting to add that this court, made up of President Chew 



^i Addison (Morris edition), 84. 



226 THOMAS SMITH 

and nearly all the heads of the district courts, sustained 
the Supreme Court, which was by no means always the 
case. 

The High Court of Errors, at this period, was a large 
one, because some members of it were liable to have been 
concerned in such great cases as came before it, either 
as counsel or Judge. It was undoubtedly one of the 
strongest and ablest courts Pennsylvania ever had. The 
United States took from it in January, 1794, an Attorney- 
General, a brilliant young Justice of the Supreme Court, 
not yet forty years of age. Judge William Bradford was 
a graduate of Princeton and a law student of Justice Ed- 
ward Shippen. He was not strong in body, however, and 
had had to resign a Colonelcy in the army on that account 
in 1779. He had scarcely been a year at the bar of the 
Supreme Court when he entered upon a service of nearly 
a dozen years as Attorney-General of the State. It was 
vmdoubtedly only this brilliant career that placed him on 
the Supreme Bench and High Court of Errors and Ap- 
peals in 1791, at the early age of thirty-six years, instead 
of Thomas Smith himself. While in this position, in 1792, 
he prepared, at the request of the Governor, a paper on 
the death penalty in Pennsylvania, which had wide in- 
fluence on the law regarding that subject both in America 
and Europe, and especially resulted in the act of April 22, 
1794, making two degrees of murder, and the death pen- 
alty only for the first. It was this situation in January, 
1794, which led President Washington to invite Judge 
Bradford to become Attorney-General of the United 
States. Although destined to but a little more than a 
year of work in the new field. Judge Bradford resigned 
from the Supreme Bench and the High Court of Errors 
the last day of the January term, 1794, and was appointed 
successor to Edmund Randolph on January 28, and the 
way was clear for Judge Thomas Smith, of Carlisle, to be 
called up higher and close his service as President Judge 
of the Fourth Judicial District of Pennsylvania. 



XI 

Member of the Supreme Court and High Court of 

Errors and Appeals of Pennsylvania 

I 794- I 809 

I, The Chief Justiceship of McKean, 1794-1799. 

Three days after Hon. William Bradford, Jr., became 
Attorney-General of the United States, under President 
Washington at Philadelphia, Governor Mififlin, also at 
Philadelphia, on January 31, 1794, directed James Trimble, 
Deputy-Secretary of the Commonwealth, to write out on 
the conventional parchment a commission to the Hon. 
Thomas Smith, at Carlisle, making him a Justice of the 
Supreme Court. The deputy did it in the most gorgeous 
style of his quill, and tied to it, with a gay pink ribbon, 
the seals stamped on two paper stars, near which, on the 
upper left-hand side, the Governor signed in large letters: 
"Tho Mifflin." Mr. Trimble then countersigned it be- 
low and sent it over to the Enrollment Office, where, on 
February 3, it was recorded. It was then forwarded to 
Judge Smith at Carlisle.^ Meanwhile, one of the most 
able lawyers of his court, James Riddle, Esq., was slated 
as his successor at the head of the Fourth District, and 
by the time Judge Smith had his affairs properly settled 
to suit the new order, which, at that time, was a term 
during good behavior or life, it was time to start for Phila- 
delphia to attend the April term of the Supreme Court, set 
for the first Monday. 

He did not at once move his family, now a large one, 
to the city on the Delaware, which was both state and 
national capital, as well as metropolis. This was partly 



^This commission, which is among the De Renne Papers, is 
given in photographic half-tone, much reduced. The original is 
about half the size of a page of an ordinary newspaper. 

227 



228 THOMAS SMITH 

because there was not time. To twelve-year-old Eliza; 
Maria, of nearly ten summers; seven-year-old Williamina, 
and Juliana, aged four, there were now added two more 
little girls — Letitia Van Deren, born on April 22, 1792, and 
named after her mother, and four-months-old Rebecca, 
who joined the home on December 6, 1793. To take this 
little family of six daughters to experience a Philadelphia 
summer, where yellow fever was so liable to be a scourge, 
was not desirable, even if there was time.^ So they were 
to remain in CarHsle until the autumn. 

There is little reason to doubt that the Supreme Court 
was held in the old west room or Supreme Court room of 
the State House. Early in the preceding January the 
Judges had applied to the lower House of the Legislature 
for a law to erect a chamber contiguous to the State House 
for a Law Library, ^ and two years later, Stephen's Direc- 
tory of the city, in speaking of the State House, said: 
"Besides the council chamber, the house of Assembly and 
several rooms, it contains the hall in which the Supreme 
Court is held. It is ornamented with two elegant clocks, 
placed on the east and west sides. On the East wing is 
the court house," meaning, of course, the county court 
house. s When Justice Smith came up from his Second 
street home that beautiful spring morning, how he must 
have been impressed with that group of buildings! Imagine 
him coming up into the square: there on the northeast 
corner, beyond the Philosophical Society's building, was 
the new City Hall, built in 1787, and containing the cham- 
ber of the National Supreme Court, where his friend. 
Judge Wilson, sat; there on the northwest corner, built 
two years after the other one, was where Congress sat — 
the capitol of the United States. On his way he may 
have passed Chief Justice Jay going to the one and 
Thomas Jefferson going to the other, while he himself 
sought the arched entrance of the old Supreme Court 
room in the State House itself — to be greeted for the first 
time by his fellow Justices. When they gathered in their 



' There had been a most disastrous siege of yellow fever the 
previous summer. 

■^ American Daily Advertiser. January 3, 1794. 

' Stephen's Philadelphia Directory, 1796, p. 68. Philadelphia 
Library, Juniper and Locust streets. 




V --a 



O O 

•-' -^ V 

■9 := Q 



7) O ?* 



A SUPREME COURT JUSTICE 229 

red robes of office on April 7 there were two Doctors of 
Laws, namely, the tall and slender Chief Justice Thomas 
McKean and the stately Justice Edward Shippen, with 
Judge Smith's old friend, the florid and portly Justice 
Jasper Yeates. Justice Smith's "commission qiiamdiu se 
bene gesserit, * * * was published in open court," ^ and 
with this ceremony Justice Smith, who was said to be a 
man of somewhat below medium height and of swarthy 
complexion, ascended the bench of the Supreme Court 
and anew became a member of the High Court of Errors 
and Appeals. The latter, however, because of his prepara- 
tion for removing at the time of its July session, he did 
not attend this year. 

Justice Smith had long appeared before the bar of this 
court. The most careful search of the dockets shows no 
record of his admission, however, as it does reveal that 
of many others. For instance. Reed, Peters, Yeates, the 
two Biddies, the two Aliens and Wilcocks were admitted 
in 1765; 2 Wilson and Magaw, in 176913 Rush, in 1773;* 
Edward Tilghman, in 1774; William Lewis, in 1776; with 
wholesale readmissions in 1778: men like Sergeant, Ship- 
pen, James Smith, Wilson and others to the number of 
twenty-seven; but, so far, Thomas Smith's admission is 
not recorded. And yet he was a member of its bar in 
1779,^ for on October 2 he is plainly mentioned as making 
the motion which secured the admission of William Barton 
and James Biddle, an act, of course, based on his own 
membership of this bar. There are many cases credited 
to "Smith" for years before this, too, but here again is 
experienced the same difficulty as that afforded in the 
records at Carlisle. Many of these cases may have been, 
and probably were, the cases of James Smith of York and 
Carlisle. There was no uniformity in the methods of the 
successive Prothonotaries and their clerks, for in the same 
book James Smith will be marked "J. Smith" and "Smith," 
and Thomas Smith will appear as "T. Smith" and "Smith." 
The earliest record in which a distinction is discovered is 

' Yeates' Reports, Vol. I, p. 344. The docket also states that all 
the court were present. 
^ Docket 4. 

* Docket 5. 

* Docket 6. 

* Docket 7, p. 583. 



230 THOMAS SMITH 

at the April term, 1783/ when, as at Carhsle, he appears 
as "Sm. Jr." At the September term, 1784, he is marked, 
in one case, "T. Sm,," and in April, 1785, "T. Smith," but 
from that on until 1791 the confusion is such that there 
can be no adequate conception of the amount of his prac- 
tice in the Supreme Court, though it was plainly consider- 
able, especially in the last five years of his practice. 

Among his rivals and colleagues before this bar had 
been such men as Wilson, James Smith, Wilcocks, Reed, 
Fisher, the Tilghmans, Lewis, Campbell, the Aliens, Scull, 
Daniel Clymer, the Rosses, Hartley, Shippen, Yeates, 
Rush, Sergeant, the Bradfords, Coxe, the Biddies, Hamil- 
ton, Rawle, Magaw, Sample, the Levys, Moylan, Kittera, 
the Dallases, Brackenridge, Riddle, Montgomery, J. B. 
McKean, Duncan, Duponceau and a few others. This, 
of course, refers to the terms of the court in banc at Phila- 
delphia. Some of these men were now in high judicial 
positions themselves. Wilson was on the Supreme bench 
of the United States and Bradford was national Attorney- 
General. Some, as Justices Shippen and Yeates, were on 
the bench beside him on that April morning in 1794. 
Others, as James Biddle and James Riddle, were on the 
District bench, and A. J. Dallas was Secretary of the Com- 
monwealth, but most of his old colleagues and rivals came 
before him both at Philadelphia and on the circuit. This 
first April term was short, lasting only from the 7th to 
the 19th of April, inclusive. 

He was on the bench in August, too, but this was 
probably a Nisi Prius court; while thus engaged the 
Whiskey Insurrection had reached such proportions in the 
West that, besides military measures, President Washing- 
ton had directed the appointment of a Commission to con- 
fer with the insurgents and aid in preventing bloodshed. 
This Commission was composed of Attorney-General 
Bradford, James Ross, Esq., of Pittsburg, and Justice 
Jasper Yeates, the first mentioned to choose Justice Thomas 
Smith in case Yeates or Ross was prevented from serving. 2 
They were not prevented, however, and their excellent work 
in quieting the minds of the insurrectionary element is a 



^Docket 13, p. 417. 

''Pennsylvania Archives, Second Series, Vol. IV, p. 118. 




The Supreme Court ok Pennsylvania in 1794 



A SUPREME COURT JUSTICE 231 

matter of well-known history. The regular September term 
lasted from the first Monday until the 19th of that month, 
and after that the cool weather enabled him to settle with his 
family in Philadelphia, an achievement which was well ac- 
compHshed during October. 

The metropolis was estimated to contain 55,000 in- 
habitants at this time, and numbered houses ceased at 
Ninth street.^ West of that were suburban and country 
seats. President Washington was at 190 High or Market 
street and Robert Morris at 192 — these being the last two 
numbers on the south side of the street before Sixth street 
was reached. Governor Mifflin lived at 248 High street, 
and had the executive office on the second floor of the 
State House. Jared Ingersol, Attorney-General for the 
State, lived at 270 High or Market street, and Justice 
James Wilson of the National Supreme Court at 274. 
Alexander Hamilton was at the corner of Tenth and 
Chestnut and Edmund Randolph at 319 High street. Jus- 
tice Smith seems to have been attracted to the southward 
at first, however. Attorney Miers Fisher lived at 92 South 
Front street and Dr. James Mease at 176, with President 
Barclay of the Bank of Pennsylvania at 216. The vener- 
able lawyer, Nicholas Wain, lived at 146 South Second, 
and at 236, just beyond Lombard street, was a house for- 
merly occupied by the Widow Stevenson, which Judge 
Smith considered favorably. Chief Justice McKean lived 
near Union street — the street in which Judge Bryan's 
home had been at one time — at 157 South Third street. 
William Lewis was in the same street and President of 
the High Court of Errors, Benjamin Chew, was at no 
South Third. President Willing of the Bank of the United 
States was at 106 and the elegant mansion and English 
gardens of Speaker William Bingham were at Third and 
Spruce streets. Attorney William Tilghman, Justice Ed- 
ward Shippen and Dr. Benjamin Rush, Judge Smith's 
family physician, were in South Fourth street. So, in 
October, Justice Smith was settled in his new home in 
the Widow Stevenson house at 236 South Second street, 
where, according to the custom of the place and time, he 
also had his office. 



^ Hardie's Philadelphia Directory, 1794. 



232 THOMAS SMITH 

"While you," said he to Justice Jasper Yeates, then 
engaged on the Whiskey Insurrection Commission, in a 
letter, on November i, 1794,^ "have, as I learn from the 
News-Papers, been investigating two untoward accidents, 
which I feared very much would have produced mis- 
chievous effects on the minds of the people, at the present 
crisis, I have been busily employed in beginning House- 
keeping a second time: I had no idea of the trouble, 
anxiety & loss, attending this business, till I made the ex- 
periment: I bought my former furniture during the war, 
at about i| Prices: — what I sold of it brought httle more 
than half of what I gave for it: — I would have brought 
most of it down & saved money by so doing, had I known 
that there had been such a rapid rise in the prices of many 
articles here: — that rise is caused by the increased price 
of imported articles, & the absence of the greater number 
of the best Mechanics, in the Militia. * * * Workmen 
must be fawned upon & flattered to do the best piece of 
work & when they have done it, they think thev have done 
you a great favour, if they charge only double price — if you 
venture to hint that their charge is too high, they tell you 
they must soon charge higher, as money is now depreciat- 
ing as fast as it did in the beginning of the war — nor is 
the observation ill-founded, for Mr. Shippen, Mr. Burd & 
a number of my acquaintances who attend to the matter, 
& do not speak at random, assure me that the expenses 
of living in the city, including House-Rent has increased 
one third within the last three years; so that I have gained 
a loss, or advanced backzvards as an Irishman would say, 
by my last promotion: this consideration has had such an 
effect upon my judgment, that I very deliberately sat down 
before I began this letter (which I could not prevail upon 
myself to do before) & made out an account of the number 
of Days I attended the Supreme Court, &c., in April, 
August & September — taking it for granted that the As- 
sembly intended what they ought to have expressed. To 
be serious on this point — to avoid the imputation of an 
affectation of singularity & disinterestedness, which might 
imply a reflection on those who received their expenses, I 
have made the charge — otherwise, I believe I should not 

^ Stauffer Collection of Letters of Thomas Smith, Yonkers, N. Y. 



A SUPREME COURT JUSTICE 233 

have made it, although I am satisfied that it ought to be 
allowed & perhaps was so intended.^ 

"I believe Tacy told you," he continues, in a chatty, 
interesting way about the humor of the home details, 
"that I had provided so well at Markets & Stores for the 
reception of the Family, that she was astonished, as I 
had been ahogether unused to that business : I had indeed 
provided as much Beef, Veal & Butter as would have 
lasted the family a week, if, unluckily, they had not been 
kept about a week too long before I bought them. I can- 
not brag much of my improvement in marketing since : — 
a few days after, in strolling along the new market, I saw 
some fish on a string, which I thought were small Rock. 
I bought them at what I supposed was a reasonable price 
& exultingly produced them to Tacy when she came down 
stairs: 'Rock my dear, why they are Suckers — ah, ha, 
ha!' Thanks to the cats, they soon put it out of her 
power, had any acquaintance come in, to prove what they 
were. Determined to make amends for my mistake, I 
went about ten days ago, to Market Street Wharf — the 
upper Ferry, determined to buy a large Rock. I saw but 
one, & that Oellers^ seized giving the seller 11/3 after 
she had insisted on 15/ — After going so far, I would not 
come home without Fish, & therefore contented myself 
with a few small Rock, which appeared very fresh — you 
may be sure I knew better than to buy suckers again. — 
As I brought them along I met Sharp Delany:^ 'I am 
glad to see you at that business' [said he]. 'It is an awk- 
ward business to me as I don't understand anything about 
it.' 'You have, for all of that, got a string of as fine Her- 
rings as I ever saw.' Taking it for granted this was a 
[joke] of Sharp's, I trudged along, & passed 2 women — 
one said to the other 'Those are the finest Herrings I 
ever saw.' Home I came, gave orders that they should 
be put where the suckers had been put before; but, to my 
mortification, the windows had been secured the day be- 

^The salary of Associate Justice in 1793 was £600; in 1797, 
£750, or about $3,750, if one uses modern rates of exchange. 

^ James Oellers, a hotel-keeper on Chestnut, between Sixth and 
Seventh streets. 

^ Sharp Delany was Collector of the Port, office at 40 Wahiut 
street. It may be mentioned that General St. Clair was Governor 
of the Northwest Territory at this time. 



234 



THOMAS SMITH 



fore, & my character as a market-man irretrievably lost. 
Tacy will no more trust me, but goes herself every market 
day to Market Street, which I do not approve of, although 
I am convinced that moderate exercise in good weather 
is conducive to her health. During the first two weeks, I 
think I walked * * * ^ miles p. Diem & at least 3 since, 
& Tacy more than half as much — by walking 2 or 3 miles 
& going into 20 or 30 stores, she may perhaps save 3*^, 
6^^ or 7, which is a great matter you know, to a frugal 
House-wife, as she thereby discovers which are the cheap- 
est stores. 

"I am become a very Domestic Man — I have not spent 
an hour out of my own House, since I saw you & Ross at 
the waggon. I claim no merit for staying at home — 
against evening I am so tired generally by the business 
of the day, that had I any inclination, the distance is too 
great to go up town, & I have not one acquaintance in 
this part of it." In consequence of this last fact, no doubt, 
Judge Smith even then looked forward to a residence in 
High street, where more of these "acquaintances," by 
which, undoubtedly, he meant intimate friends like Justice 
Wilson, were located. 

He soon became identified with some of the social 
and literary institutions. Societies for the aid of fellow- 
countrymen in need were quite common then. There 
were, about this time, the St. Andrew's Society, with Jus- 
tice James Wilson as President and Dr. William Smith 
as First Vice-President; the German Incorporated So- 
ciety, President Muhlenberg; the St. George Society, 
President Robert Morris ; the Hibernian Society, Presi- 
dent Thomas McKean, and the French Benevolent Society, 
with Peter S. Duponceau as Secretary. Judge Smith, ac- 
cording to the records of the Society,^ had been made a 
non-resident member, presumably, in 1791, but on Novem- 
ber 30, 1794,^ he was made a resident member. He be- 
came First Vice-President some years later.^ The Phila- 
delphia and Loganian Libraries were located on Fifth 
street, nearly opposite the American Philosophical So- 

^ Catalog of the St. Andrew's Society, with an historical sketch. 
* Certificate of resident membership among the De Renne Papers. 
' Robinson's Philadelphia Directory gives him as First Vice- 
President in 1805. 



A SUPRBME COURT JUvSTlCE 235 

ciety's building on Independence Square, the exact site 
being the south end of the present Drexel Building. This 
was the oldest circulating library in the land, and it was 
a privilege to be a shareholder. The price of a share was 
then ii5, or about $75 (if one uses modern rates of ex- 
change), with an annual due of 15 shillings. Judge Smith 
bought share No. 769 on December 8, 1794,^ and it re- 
mained as a part of his estate until it descended to his 
son in 1831. There is evidence that he was a devoted 
student and reader, and made much use of this rare col- 
lection during his remaining years in Philadelphia, when 
it could easily have been a habit for him, at the close of 
court in the State House, to step across Fifth street and 
take down a favorite volume of the day, after a long ses- 
sion or a difficult sitting in writing an opinion. 

It is not known what kind of a law library the court 
may have had at that time. Certain it is, however, that 
there was but one volume of Pennsylvania decisions, the 
first volume by A. J. Dallas, not only then, but for some 
years thereafter. Most of the Judges kept manuscript 
notes of decisions and commonplace books which were 
fraternally consulted and highly valued.- Judges Yeates 
and Smith were especially careful to keep such notes, the 
former with such fullness that they were published, after 
his death, many years later. The library of the Law Asso- 
ciation of the city was not begun until several years later, 
but it must not be thought that these Justices did not have 
excellent individual libraries. Judge Smith himself had a 
library which was valued at over i255,* and while, un- 
fortunately, its character is not known, that of the library 
of Judge Yeates is, and no one who has examined its 
more than a thousand volumes but turns away from it 
with the conviction that, even though there was but one 
volume of Pennsylvania reports at that time, these Judges 
had libraries of remarkable excellence, containing the best 
legal lore of their time.* Such men were abundantly 



^ Library Records, Book B, p. 65. The share passed out of the 
family with the death of Judge Smith's son. 

^ Eli Kirk Price, Esq., of Philadelphia, has the old common- 
place books of Tench Francis and Edward Shippen. _ 

^ Inventory of his property, Recorder's office, Philadelphia. 

* Judge Yeates' library has, through his daughter's wisdom, been 



2^6 THOMAS SMITH 

equipped to make the decisions which have been a source 
of constant reference from that day to this, and no one 
can read them without an increasing- veneration for these 
first workers under our new Constitutions. 

Fortunately, a vohime of Judge Smith's own notes of 
cases in that April term, 1794, containing some expres- 
sions of interest, has been preserved.^ "If there is a pal- 
pable mistake producing injustice pointed out," reads one 
of them, "Court will investigate an award. There must 
be good ground proved before Court will inquire into it. 
They will presume it right until the contrary be proved. 
The person taking his exception ought to prove his ex- 
ception clearly." 2 "Minors, slaves in dififerent State, reads 
another, "may be bound till 28 years, because they thereby 

gain their freedom."^ "Note for the payment of 

pounds, lawful money of Connecticut," says a third, "must 
be reduced according to the value of Connecticut, and not 
of Pennsylvania, where action was brought, both parties 
having Connecticut in contemplation."* Again: "Juror 
drinking at expense of Pltfif. is not of itself sufficient reason 
for granting a new trial, on motion of def. unless it was 
done at the invitation of Pltff. or to gain favour, nor a 
juror giving his opinion after he was sworn."^ 

At the January term, 1795, a phase of the famous case 
of the sloop Active came before the court, bearing upon 
the action of the Judge of Admiralty, the then late Hon. 
George Ross. The court had hoped the matter would be 
taken before the Supreme Court of the United States, but 
as their judgment was insisted upon, they gave it. After 
enough Judges had expressed opinion to determine the 
verdict. Judge Smith added : " I had the honour of being 
one of the committee of the house of assembly, who met 
a committee of congress in conference on the business of 

preserved as a section of the Law Library at Lancaster. A catalog 
of it can be seen at the Law Association, Philadelphia. 

^ Chief Justice Tilghman, between whom and Judge Smith there 
was the warmest intimacy, thought so much of one vokmie of the 
latter's notes that he copied the whole of it, or, rather, copied a part 
and had Charles Willing Hare copy the rest for him. The Tilghman 
copy is in the possession of Eli Kirk Price, Esq., Philadelphia. 

^Smith's Notes (manuscript bound volume), p. i, No. 2. 

^ Ibid., No. 3. 

* Ibid., p. 3, No. 6. 

" Ibid., p. 4. 



A SUPREME COURT JUSTICE 237 

the sloop Active. Being- fully sensible of the difficulty of 
eradicating early prejudices, I intended to have declined 
giving any opinion on the points argued before the court; 
but I will, however, now say, that I perfectly agree with 
the judge [Yeates] who last delivered his sentiments. 
Were it necessary to give my sentiments on the first point, 
I should incline to the opinion of the chief justice respect- 
ing it. On one point, I have no difficulty in saying that 
no action would lie against a judge, for what he does in 
that character."^ He closed by giving several citations. 

How he valued his notes and what difficulties the court 
sometimes found in arranging circuits is shown in a letter 
of July 23 of the following year, 1795, to Judge Yeates: 
"This morning I received your letter of the 23^"^, in conse- 
quence of which I came immediately to Mr. Shippcn's & 
showed it to him — while we were in deep consultation on 
the contents of it, & arranging & deranging the Circuit 
without being able to come to any conclusion satisfactory 
to ourselves, Mr. Burd entered, but even with his assist- 
ance, we found it impossible to accommodate you & all 
the gentlemen of the Bar. Mr. Burd finding he could give 
us no assistance, left us; we came at last to this conclu- 
sion — Easton 28" Sept., Berks 5 Oct., Northumberland 
12*'% Carlisle 19 & Dauphin 28*^. The first will accom- 
modate you — Dauphin beginning on Wednesday will give 
the Gentlemen who attend at Carlisle 2 days at the County 
Court during which they may do a good deal of the neces- 
sary part of the business. As for us, Mr. Shippen says we 
must eat, if we cannot catch, Fish. * * * Having put 
into my pocket the Notes which you desire me to send 
to you, I inclose them with all their imperfections on their 
head: give me leave to say that in sending them, I pay 
you no bad compliment. I do not know many to whom 
I would pay the Hke, because there are not many on whose 
punctuality in returning them, I could rely — on you I can 
rely. * * * I thank you and Charles for the Notes of 
the Trial in Fayette county.'" It was usual to divide up 



' I Yeates, 463. 

^ Stauffer Collection, Yonkers, N. Y. This last refers to a case 
in his own name. In an earlier letter, referring to it, he says : "Do 
you intend to sleep again on the summit of the Allegheny Mountams 
as you go up, in order to breathe pure air?" 



238 THOMAS SMITH 

the State into circuits, usually two Justices to a circuit, 
although one often went alone. 

This was written when the High Court of Errors and 
Appeals was in session, beginning as it did on July 13, 
with President Chew, Chief Justice McKean, Justices Ship- 
pen and Smith and President Judge Biddle of Philadelphia 
on the bench, presumably that of the old Supreme Court 
room. Among other lawyers who were at this time prac- 
ticing in the High Court were Tod, Heatley, J. B. Mc- 
Kean, Charles Smith, Ross, Lewis, E. Tilghman, Ingersoll 
and Wilcocks. In a case reversing the judgment of the 
Supreme Court, Judge Smith sympathized with the de- 
cision of the High Court in the following words : " I do 
not feel myself at liberty to join in the decision of the 
general question, as I have acted in the character of an 
Executor, in a manner that may be affected by it. But 
I strongly incline to the opinion of the President, that a 
sale by an Executor, under a power to sell for the pay- 
ment of debts, is valid; and the purchaser will hold the 
lands discharged from the general lien in favor of creditors. 
The present case, however, is not of that description; for, 
the Will only gives a power to sell for the payment of 
legacies; and such a sale must be void as to the creditors."^ 

On August II (1795) he took time to write a chatty 
letter to his cousin Dr. Peter Smith, at Aldie, the new 
home he had recently bought, referred to by Boswell in 
his "Life of Dr. Samuel Johnson." Dr. Smith was the 
means of communication with Judge Smith's mother and 
sister, both of whom the Judge had long since provided 
for in funds at interest and otherwise. "I wrote a long 
letter to you," he says, "about the last week in February 
or the first in March, 1794, but as I have not had the 
pleasure of a line from you since, & as Mr. Bond informed 
me lately, when I mentioned your silence, that one of the 
vessels with which he sent letters about that time had 
been taken and carried into France, I am afraid that you 



^2 Dallas, 293. This is feported much more fully in i Yeates, 
568, where Judge Smith gives the reason for giving any opinion at 
all: "But as the Judges who have spoken before me think it neces- 
sary that I should declare my opinion, I have no hesitation in say- 
ing that I join in the opinion delivered by the President." 



A SUPREME COURT JUSTICE 239 

never received that letter: I informed you in it, that from 
being President of the Courts of Common Pleas in the 
fourth Circuit, I had then lately been appointed one of 
the Judges of the Supreme Court of the State; in conse- 
quence of which I was obliged to reside at Philadelphia, 
the seat of Government. I removed hither accordingly." 
After expressing great anxiety about his mother and sister, 
he adds: "I expected some of Mr. Addison's friends be- 
fore this time from Dovern in Banfshire, who might have 
seen you all; * * * . 

"I informed you in the Letter which I suppose was 
taken," he continues, "that my Brother had lost his amiable 
wife in the malignant fever which raged here so dreadfully 
in the Autumn of 1793 — since that time he lives forlorn & 
disconsolate, bereaved of that serenity which her society 
would have given to the evening of his days: last spring 
he had a severe attack of the Pleurisy, from which he has 
indeed recovered, but apparently impaired both in body & 
mind — he lives at his country-seat in a beautiful situation 
commanding a near view of the Schuylkill, 5 miles from 
the city, our Sister & he live there as if in an hermitage — 
I ride out occasionally to see him; but when a man has 
himself lost the enjoyment of life, another must relinquish 
them while in his presence — he has made an ample for- 
tune — the children to whom it will devolve, would rejoice 
to see him enjoy his evening hours in the proper use of 
it; but, as I frequently tell him, he never will." 

Referring to his cousin's son, a physician, and pros- 
pects for him in America, he adds: "The Medical Schools 
in this Place are now so complete that great numbers 
from all parts of the United States frequent them: indeed, 
the Profession is already overstocked (if I may use the 
expression), & our national prejudices are already almost 
equal to yours, in so much that unless a foreigner pos- 
sesses first rate talents, he will have little chance of suc- 
ceeding here now in any of the learned Professions, but 
more especially in that of Physic. It is an Idea eagerly 
propagated by the Profession of that art, & now pretty 
generally entertained by the People, that a Physician, a 
native of, & educated in the country, will thereby, if he 
possesses equal talents, understand the diseases incident 



240 THOMAS SMITH 

to the climate much better than one educated in a different 
climate: * * * ."i 

Of the relations between the two nations, he says: 
"Indeed I am not without painful apprehension that a 
stop may soon be put to the intercourse between the two 
countries — too eager grasping; & want of reciprocity, on 
the part of Britain in the late Treaty, have produced an 
intemperate flame among the people from one end of this 
country to the other; unless unimpassioned reason should 
direct the Councils of both nations, the consequences may 
be dreadful, & the enemies of both may have cause of tri- 
umph — they will no doubt be busy in both, in adding fuel 
to the flame. As I have never hitherto written a sentence 
on political subjects to you, you may suppose that I feel 
myself interested on the present occasion. I do indeed — 
the first political wish of my heart, is, that the United 
States may support their honour and dignity — the next is 
that they may never forget their obligations to France & 
that consistently with both, there may be a lasting & lib- 
eral reciprocation of good offices between us & the nation 
which gave me birth." - 

Among upward of eighty expressions, opinions and 
charges delivered from the bench which have been pre- 
served and handed down in the recognized reports, the 
earliest definite opinion is a short one at the September 
term of that year, 1795, in which he gave the decision of 
the court. "At the court of Nisi Prius, held in Hunting- 
don county," he says, "the following case was stated for 
our opinion. The plaintiff was jointly and severally bound, 
as surety, in a bond with, and for, the defendant. After 
the bond became due, the defendant was discharged, under 

^ One can hardly forbear inserting a delightful little touch which 
appears at this point in the letter: "I have six children — all girls, 
and by the time you receive this, if my beloved wife is spared by 
heaven to continue my happiness, she will bring me a seventh. If 
I remember right, you were a seventh son, but as I do not recollect 
to have read or heard of any preeminence ascribed to a seventh 
daughter. I will be content with a son — but if the beloved mother 
be well it is perfectly indifferent to me. I need not tell you that my 
friends suppose this indifference is not a little affected." The fact 
is, however, that the new arrival of November il (1795) was a boy, 
to whom was given the name of the Provost — William. The child 
only survived a few months, and died July 24 following. 

" Letter to Dr. Peter Smith, of Aldie, in Cruden, dated August 
II, 1795. De Renne Collection. 



A SUPREME COURT JUSTICE 



241 



the general insolvent act of the State of Maryland, passed 
in April, 1787; and, subsequent to that discharge, the 
plaintiff was sued on the bond, paid the amount with in- 
terest and costs, and then instituted the present action (in 
which the declaration is for money paid for the use of the 
defendant) to obtain a reimbursement.— Under these cir- 
cumstances, it is clear, that the action would be sustained 
in England, against a bankrupt, discharged by the bank- 
rupt laws of that country. The insolvent law of Maryland 
does, indeed, exonerate the debtor from all debts due or 
owing from, or contracted by him, prior to his deed of 
assignment; but the English statute contains words equally 
comprehensive ; and, yet, it has never been deemed to ex- 
tend to cases like the present. The plaintiff could not have 
been entitled to a dividend of the insolvent debtors effects, 
and it would be a denial of justice to refuse him the only 
remedy, which he can have on this occasion. Judgment 
for the Plaintiff."! At this same term another extended 
opinion was given on an argument for and against a new 
trial, of which the following is the closing paragraph: 
"Several cases have been cited by the plaintiff's counsel," 
said he, adding nearly a dozen more that he might have 
given to advantage, "to prove that where a verdict is sub- 
stantially right, a new trial ought not to be granted. The 
law certainly is and ought to be so. But these cases do 
not apply to the motion before the court, because the ver- 
dict was entered with liberty to move for a new trial, and 
it was the understanding of both parties, that the point of 
law was to be argued before the court on this motion."^ 
A new trial was awarded, the several Justices each giving 
his opinion, as was frequently the custom at that period. 

At the March term, 1796, he delivered one of his long- 
est and most interesting recorded opinions, in which he 
points out a point of divergence between English and 
Pennsylvania law in the relation of children, as heirs to 
an estate. The expression in it of peculiar interest is the 
following: "I shall at all times pay a due regard to the 
laws, and the decisions of courts of justice of that country 
from which we derive our jurisprudence, where they are 



*2 Dallas, 236. 
^ I Yeates, 545. 



242 THOMAS SMITH 

applicable to this country. The better we are acquainted 
with them, the more firmly shall we be convinced that they 
contain the utmost exertions of human wisdom on the 
subject matter; but at the same time, I must be permitted 
to own, that I do not feel my mind fettered by them in 
instances wherein they do not apply, but are repugnant 
to the spirit of our constitution. Instances indeed there 
may be, in which by our general practice (and in all cases 
where there have been solemn decisions), those laws have 
become the landmarks of property; and in such cases a 
judge is bound by them, although he would not in the first 
instance have adjudged them applicable to us. * * * 
I find no case in the books similar to that before us. Where 
there are precedents, it is for the public good, that judges 
should adhere to them; but where there are none, it is 
equally incumbent on them to deduce one from general 
principles, which may reach the substantial justice of every 
similar case."^ 

In the early summer Judge Smith had a severe illness. 
In a letter to Judge Yeates, on July 6 (1796), he describes 
his experiences with his physician, Dr. Benjamin Rush. 
"In a few Days after the Date of my last Letter," he 
writes, "I was seized with a Fever & Catarrh, by which I 
was confined to my Bed for 10 Days; Dr. Rush, by Bleed- 
ing, Catharticks, & Sudorificks, reduced me pretty low, so 
that I believe I should have kept my Bed for some Days 
longer, had he not threatened me with the Lancet again; 
this made me get up. * * * j met Dr. Rush yester- 
day morning. He immediately ordered me to lose more 
blood — seeing me begin to growl, [he exclaimed] 'Not a 
word — don't you know that I am Lord of the Lancet?' 
* * * I have not obeyed him." 

The High Court of Errors, beginning its sessions on 
July II, sat much of the summer. The court opened with 
President Chew, Chief Justice McKean, Justices Shippen 
and Smith, and all President Judges — Biddle, William 
Henry, Rush, Riddle and Addison. On the 14th the 
Supreme Court members were absent, and so remained, 
for the most part, all summer, although Judge Smith was 
in attendance a couple of days before the death of his 

^2 Yeates, 65. 



A SUPREME COURT JUSTICE 243 

son, on the 24th. In the autumn he was very busy on a 
Nisi Prius circuit, on which he dehvercd charges and 
opinions which are reported, and a record of one case 
appealed from the Cumberland court when he was Judge, 
in which he was sustained; but space will not allow the 
consideration of these, nor entries in his note-book for this 
year, which might be of interest. 

Judges Smith and Yeates, as well as their families, 
were on terms of such intimacy that their correspondence 
often shows examples of humor and badinage, which add 
materially to the picture of their times. On January 29, 
1797, Judge Smith writes : "Last Thursday evening I went 
into the Indian Queen to see an acquaintance ; on entering 
the Door my ears were stunned by a stentorsphonick 
voice, exclaiming that he had been kept awake all the 
previous night in Lancaster by 3 Judges & others, Playing 
cards & drinking wine in the Room under that in which 
he lay — on approaching the Gentleman, I discovered him 
to be an old acquaintance & sometime afterwards I asked 
him, in a whisper, who the Judges were? He answered 
me in a whisper, but loud enough to be heard by every 
Person in the room (& it was pretty full) : 'Judge Yeates, 
Judge Henry & an old gentleman whose name he did not 
know.' His fellow traveller said that you really kept them 
both awake all night. Mr. Coleman says the gentleman 
must have made three judges out of two, for he was not 
there. * * * x assure you I was pleased at the infor- 
mation, * * * several of our mutual friends told me 
that you confined yourself in your library as closely as a 
Hermit in a cell, insomuch that you exposed yourself to 
the danger of the influence of blue Devils, * * * you 
seem to look on the bright side of things in term Time, 
& on the Circuit, & as much as any thinking man can, & 
therefore I laugh at our friends & go very near to swear 
that they are very much mistaken & I humbly think the 
information, of the two gentlemen above alluded to, proves 
that I am right." ^ 

A letter to the same person, about a month later, shows 
how President Washington himself celebrated his now 
famous birthday. "It will give you pleasure to be informed 



Stauffer Collection. 



244 THOMAS SMITH 

that the President seemed as happy on his birthday, as 
you could wish him — a dignified smile sat on his counte- 
nance, which I am told continued during the evening — 
the joy which he communicated to most of those who con- 
gratulated him on that Day, was damped by sighs from 
many of them, & from myself amongst others, at the 
thought that he is in a few Days to retire from that station 
which he has filled with so much dignity, for 'take him all 
in all, we ne'er shall see his like again.' His successor 
elect was sitting by him when we waited on him on 
Wednesday — you know his appearance is very respect- 
able—so is that of the Moon in the absence of the Sun, 
but even toward the close of a bright Day, while the Sun 
remains above the horizon, her light is hardly beheld." ^ 

Governor Mifllin, who was a neighbor at this time, had 
long suffered from ill health, and as Judge Smith had re- 
ceived a letter from Yeates durifig July telling of a rheu- 
matic trouble, the Judge describes a call on the Governor 
ill which the matter is referred to. "He immediately 
brought out two treatises on cold bathing," he writes Yeates, 
"which he has in hand all the day & under his pillow at 
night; * * * he convinced me that cold-bathing is 
a Panacea; * * * to reap the greatest benefit & to 
avoid the danger it is necessary to have these two treatises 
always in your Pocket & to peruse them with as much 
attention as you ever perused Hoyle. I regret that I can- 
not recollect the names of the authors, * * * how- 
ever, the fact is the Governor is apparently restored & in 
a better state of health than he has enjoyed for some 
years."- 

The year 1797 was an active one, as usual. As the 
junior member of the bench, always coming last for that 
reason, it is rather a testimony to his usual good judg- 
ment, than otherwise, that after McKean, Shippen and 
Yeates may have seen fit to express extended opinions, 
he should think enough had been said and deem it suf- 
ficient to concur, indicating which Judge's reasonings 

^ Letters to Judge Yeates, February 24, 1797, in the Stauffer Col- 
lection. These letters often contain many expressions, opinions and 
arguments of a purely legal interest. 

' Stauffer Collection. Letter of July 25, 1797, to Judge Yeates. 



A SUPREME COURT JUSTICE 245 

would be his own.^ Those he did give in these eadier 
years by no means sufifer in comparison with the opinions 
of his seniors on the bench. His deference to them at 
this stage is well illustrated in the following letter to Judge 
Yeates, on July 15 (1797) :2 "Yesterday Mr. Shippen 
showed me the proposed arrangement as made out by 
him, & approved by the Chief Justice ; Mr. Shippen also 
told me that the Chief Justice mentioned he & you would 
go to Bucks, Northampton, Luzerne, Northumberland & 
Dauphin; & that Mr. Shippen & I should go to Lancaster, 

York, Montgomery, Delaware & Chester. Mr. S 

asked me how I liked the distribution. I replied that I 
was, as I had been, & mean to be, quiescent entirely, un- 
less some very particular reason should occur to compel 
me to pray to be indulged to go one Circuit rather than 
another, & that no slight reason would induce me to beg 
such indulgence — that upon the present occasion he could 
not suppose I could possibly have any objection. 

"Mr. Shippen met me this morning, as he was going 
to show the arrangement, first proposed, to Mr. Inger- 
soll and asked me to go with him, where we substituted 
Montgomery for Chester & vicc-vcrsa, because Chester 
would otherwise have interfered with Northumberland & 
Mr. I wishes to attend both. 

"Mr, Shippen then suggested to me that although you 
had left it to the Judges in the city in your absence to fix 
the Circuits & the distribution of the Judges to go on 
each, yet he submitted to me, as it was fixed that the Chief 
should go one Circuit & he another the propriety that I 
should mention the matter to you: I need not assure you 

^That he made full notes of each case is well known from the 
fact that he kept both full and abridged notes. (See Smith's Notes, 
MSS. copy by Tilghman on the inside of the cover, of which 
the latter has so stated.) That he also wrote full opinions, but, 
for the reason just indicated did not read them, is shown in 2 
Yeates, 195, where he says : "I will not give my opinion fully, though 
I have prepared it at some length. The Chief Justice [McKean] 
has expressed my sentiments entirely, and I perfectly concur with 
him." Thus the very absence of his opinions, under the circum- 
stances, is proof of his sound judgment, wisdom and lack of vanity. 

^ De Renne Collection. This letter was written, apparently, dur- 
ing the session of the High Court of Errors, which met July 10, with 
President Chew, Chief Justice McKean, Justices Shippen and Smith 
and President Judges John D. Coxe, John J. Henry, Addison, Biddle 
and Rush. This was the first attendance of Coxe and Henry. 



246 THOMAS SMITH 

that I do it with great pleasure; indeed I would write to 
you constantly on such [matters] if I supposed any change 
with you in the plan of the Chief Justice & Mr. Shippen 
would be more satisfactory to you, than the plan they 
adopt ; — but I knew that Mr. Burd wrote to you some- 
time, & I took it for granted he always had, as the pub- 
lication was never made when you have been absent at the 
arrangement, till about a week after: — add to this, that I 
had so explicitly declared my acquiescence, as to which of 
the Circuits I go, that my sentiments are not asked: — the 
last Circuit I took it for granted it was intended I should 
go over the Hills, yet I did not know you were to go with 
me till I saw the advertisement in the Papers — or rather, 
by reason of a hint from you the last night of the Supreme 
Court, I took it for granted the C. Justice * * * 
would go. * * * J * * * assure you that if by 
exchanging Circuits with you, I can accommodate you, 
either now or on any future occasion, I will do it wdth 
as much pleasure, as I believe you would with me on a* 
similar occasion, did the situation of my affairs render it 
necessary that I should go one Circuit rather than an- 
other. * * * But I beg leave to put the matter upon 
another footing, by saying that you will really oblige me 
by previously intimating to me which Circuit you prefer 
in future when you and I are to go different Circuits."^ 

The yellow fever, which was again epidemic this year, 
no doubt hastened Judge Smith's plans to seek a home 
on High street [Market]. This street, west of the market 
region — say from about Fifth street westward to the 
wooded square at its junction with Broad — was a favorite 
with national and state government officers during this 
decade. At this time, however, there were no numbers 
beyond Ninth street and but few residences. Judge Smith 
bought him a residence in the border-land between country 
and city, the next to the last property on the south side 
of the street before Tenth street is reached. Even four 
years after this the numbers did not extend to it. Ex- 
President Reed lived at 235 Market street. President Chew 

^ In this letter also he speaks of the dangerous illness of his 
second baby boy, born on May 20 preceding, and named by his 
wife after himself — Thomas. The child died, however, on August 
15 following. — Fly-leaf of family Bible in De Renne Papers. 



A SUPREME COURT JUSTICE 247 

of the High Court of Errors was at 258, WilHam Rawle 
was at 260 and A. J. Dallas at 276, and six residences 
beyond this, all unnumbered, was Judge Smith's. There 
were, even then, no houses at all beyond Twelfth street 
westward. Five years after, or in 1802, his residence was 
numbered 256 High street, and two years still later, was 
356. President Adams was at 190 High street after he 
entered ofifice. 

On September 3 (1797) Judge Smith wrote his cousin 
in Scotland: *T am sorry I must inform you that a malig- 
nant, contagious Fever, called the Yellow Fever, broke 
out again in this city 3 weeks ago, similar to that in 1793, 
which carried off near 5,000 citizens — & by which my 
Brother lost his wife: hitherto it has been confined to the 
vicinity of the River Delaware where it first broke out 
both times. The Physicians are divided in opinion, 
whether it was imported from the West Indies, or gen- 
erated here — I join the former opinion; only about 100 
have hitherto died of it. * * * The Citizens are so 
much alarmed that, perhaps, one-third of them have left 
the city. I live in the very upper, western side of the 
city, a mile & a half from the place where the disease 
chiefly rages, & yet my goods have been packed these 
six days to move on the first information of its approach: 
— 4 days ago 7 of the Doctors were confined by Fevers — 
some of the yellow fever — one of them was married 
on Saturday evening — seized Sunday — died on Tuesday: 
* * * Since I wrote to you last I have bought an 
elegant new House in the best part of the city. I have 
paid already nearly three thousand guineas & it will cost 
me about 200 more to finish my back buildings.^ Many 
of our new houses are built in a very elegant style — the 
room in which I now write is 26 feet 2 inches square. 
The place is more than my fortune enables me to give — 
that is, it is such a house as my family could not keep 
after my decease ;2 but the Education of my children was 
a principal inducement to my coming to reside in the City; 
now most of those in the upper ranks of life, who have 
large families, take a House in the Country in the Summer, 



*A total of something like $16,000 by present exchange rates. 
'His salary was quoted in the Directory of 1799 at £600. 



248 THOMAS SMITH 

but in my house I have the benefits of the City and 
Country combined — all the advantages of country air; 
* * * the House being in the best part of the prin- 
cipal street in the city, it may be sold for its value at 
any hour. A few months at French & Music (the Forte- 
Piano) will finish the Education of my eldest daughter.^ 
She has brought my memory to the test; it is 32 years 
since I learned French & although I have not devoted 
much of my time to it since, I find I am able to assist 
her lessons frequently. * ''• * She writes in French 
to me when I am on the Circuit. 

"I have since I wrote the last sentence," he adds in 
closing, "been witness to a scene of infantine distress, aris- 
ing from jealousy — two of my younger daughters gener- 
ally lead me up stairs to Breakfast or Dinner & if more 
than 2 come, the two youngest have the choice, unless 
any of them has committed a fault, in which case she is 
not permitted to have this honour. To-day when notice 
was given that Dinner was ready, the two youngest came 
down hand in hand as usual, but the third girl slipt down 
the back stairs & took me up that way, before the others 
got down ; the little things cried with vexation and hardly 
ate any Dinner." He then adds that this last is put in for 
their grandmother to read — for whom all his letters show 
the greatest reverence and devotion. 

The yellow fever epidemic seriously interfered with the 
regular September term of the Supreme Court more than 
once, and the present year, 1797, they met the first day 
of the term, but adjourned to the last day at once. The 
same thing occurred in 1798, and the High Court of Error 
in that year seems to have had a very short session, with 
only the Philadelphia members, Chew, McKean, Shippen, 
Smith and Coxe, in attendance. During this year, 1798, 
at the December term, he expressed a dissenting opinion, 
which so well illustrates his instinctive courtesy that the 
less technical part may be reproduced: "I am bound by 
the current of the book cases, and find myself compelled 
to give a dififerent decision. It is my duty to express my 

^ This daughter, Eliza, was long in correspondence with a daugh- 
ter of Judge Yeates. The letters were collected and edited by the 
late Mrs. Alfred Whelen, with a view to publication. As society 
letters, they have much interest and value. 



A SUPREME COURT JUSTICE 249 

own sentiments, and the grounds on which they have been 
formed. * * * i have considered the case before us, 
with all the attention of which I am capable. I have 
weighed the foregoing authorities in one scale, and the 
adverse cases in the other. In principle and reason the 
last preponderate; but the authority of the first is too 
great for me to get over. At the same time, I rejoice 
that the rest of the court feel themselves at liberty to de- 
cide upon principle and reason, unfettered by the determi- 
nations by which I feel myself bound, contrary to the wish 
and inclination of my mind. Were there no authorities, 
was it a question of intention, I would not, I could not 
hesitate to say, that the devise would be a bar of dower. 
* * * Upon the whole, I find myself compelled to say, 
that judgment should be given for the demandant. But 
by the opinion of the other judges, judgment must be 
entered for the tennant.''^ 

Another opinion, although written the following year, 
may be given as an illustration of the vigor and indignation 
that he could feel, although the amount of feeling in it 
may have been the cause of his not giving it. His nephew 
inserted it, however, when he edited Yeates' Reports, years 
later. Speaking of an apparently fraudulent course of an 
insolvent debtor, he said: "It behooves us therefore, as 
we regard the morals, honour and credit of the State, to 
give such a judgment as will secure to our fellow citizens, 
and all others having commerce with them, their just rights 
according to the laws of the land, and to guard them 
against subterfuges in violation of the law, on the subject 
matter before us, otherwise our decision will be cited for 
a precedent, and many evils by the same example will 
creep into the state. I have so great a veneration for the 
law, as to suppose nothing to be law which is not founded 
on common sense and common honesty. All laws rest 
upon the best and broadest basis, which go to inforce 
moral and social duties." Referring to the wealth of the 
man and its source in speculation, and a part of it sud- 
denly and rapidly depreciating in value, he says : " In this 
embarrassed situation, a man * * * all at once con- 

^2 Yeates, 399. His references fo English reports are here 
omitted from these opinions, as they are at the hand of any lawyer 
and not of service to the lay reader. 



250 THOMAS SMITH 

veys to his children all his estate, which was of a certain 
intrinsic value, for these notes, forsooth! 'Angels and 
ministers of grace defend us ! ' He must be willfully blind, 
indeed, who cannot see the farce acted in this transaction. 
His counsel certainly had great command of their counte- 
nances, to refrain from laughter, in stating it! I could 
as soon believe in transiibstantiation, as believe that he did 
not make these conveyances from an apprehension that the 
immense sum * * * might be in danger, which de- 
termined him to secure to Jiiinsclf all his estate of certain 
value; I say to himself j for in such family transactions, a 
secret trust must be presumed. The character of Lear's 
daughters are not nature; but yet no father, in full posses- 
sion of his reason, will put his estate in the power of his 
children, and render himself dependent on them, without 
sinister motives. * * * It is contended, that this fraud 
is confined to concealing part of his estate; consequently, 
he may willfully and deliberately convey the w'hole, or the 
greater part of it in such manner, as to put it beyond the 
reach of his creditors, with even an avowed intention to 
defraud them, and may accomplish his intention completely, 
and yet he shall not be continued in prison for an hour, 
although he has defrauded them thereby of millions; 
whereas if he conceals the smallest part with the same view, 
he is liable to imprisonment under the law. Common 
sense and common honesty combine in forbidding such 
a construction ; it would disgrace the morality of the Jesuits, 
and even St. Omer's would blush at it."^ 

^ 2 Yeates, 505. In a letter to Yeates on the case, he says : " Mr. 
Levy said this afternoon that the investigation could not be agree- 
able to at least one of the Court. The C. J. took fire — but afterward 
heard him 2^ hours with great Patience." Dated June 18, 1799. 
Stauffer Collection. 



XII 

Member of the Supreme Court and High Court of 

Errors and Appeals of Pennsylvania 

I 794-1 809 

II. The Chief Justiceship of Shippen, 1799-1805. 

The year 1799 was an eventful one. First, a wave of 
democracy was passing- over the land, and with *it came 
the great victory in Pennsylvania, in which the Repub- 
licans, or Democrats, as they often called themselves, in 
contradistinction to the Federalists, placed their old-time 
Chief Justice, Thomas McKean, in the Governor's chair. 
At the time he was inducted into ofBce, on November 17, 
1799, he was but a few months over sixty-fiive years of 
age, yet he had been Chief Justice for over twenty-two 
years. He was so remarkable a man that he is said to 
have paved the way, as a political leader, for the accession 
of Jefferson to the Presidency of the United States. Party 
feeling ran high throughout Pennsylvania, and especially 
in the central and western parts, which demanded that the 
capital should be brought nearer the center of the State. 
Harrisburg was decided upon as the permanent seat, but 
the government, it was determined, should leave Philadel- 
phia at once, as the national government was about to do, 
and Lancaster was settled upon as the temporary seat begin- 
ning in the following November. Governor McKean, with 
his usual dispatch, on the next day after assuming ofifice, the 
i8th of December, provided for the vacancies made by his 
removal from the Supreme Bench. There could be but one 
voice as to who should be Chief Justice. No man was 
more fit for it than the venerable Edward Shippen. now 
seventy years of age; a man who had studied under Tench 
Francis and in the Temple; one who was evidently in 
training for it as Prothonotary under Chief Justice Allen; 
who had been President of the Common Pleas of Phila- 

251 



252 THOMAS SMITH 

delphia until his accession to the Supreme Bench, and had 
now seen not only eight years of service on that bench, 
but nearly double that period in the High Court of Errors 
and Appeals. This was an entirely proper promotion, too, 
which moved the whole court up one point in seniority 
of service.^ These Judges were now all Federalists, as 
were all the other Judges of the State, and here was 
an opportunity for Governor McKean to place a member 
of the victorious party on the bench. Another element, 
too, had to be considered: Chief Justice Shippen repre- 
sented Philadelphia; Justice Yeates, Lancaster, and Justice 
Smith, the mountain region. The western part of the State 
claimed the fourth Justice. Judge Alexander Addison of 
Pittsburg was distinguished enough for learning and abil- 
ity to at once occur to the mind of every one as the natural 
candidate, were it not that he had been, and was still, not 
only an ardent Federalist, but was using his charges to 
grand juries to instruct the public in the principles of 
strong government, as he believed to be his duty.^ The 
feelings aroused in 1794 in that region were not sufficiently 
allayed to endure much of this — possibly, too, Judge Ad- 
dison retained too much of the spirit of the Presbyterian 
pulpit, which he once filled, for a judicial office ; although 
Judge Rush was quite as much of a grand jury preacher, 
as any one who has read his charges must admit. ^The 
result was that Governor McKean selected a brilliant Pitts- 
burg lawyer, writer and Democrat, Hugh Henry Bracken- 
ridge, who was one of the acknowledged literary and political 
powers of the day, but whose course during the Whiskey 
Insurrection had laid him open to suspicion as a leader 
in it, although it is said that Washington, Hamilton, Mifflin 
and Ross understood and were in sympathy with what he 
was doing, namely, not thwarting the insurgents in order 
to influence them. 

Brackenridge was a genius and a great wit, although 
Philadelphia considered him rather coarse. He delighted 

^ Justices Yeates and Smith were each fifty- four years of age at 
this time. 

^ Addison's charges were published. 

' A vohime of Rush's charges was pubHshed by Dr. Ashbel 
Green and other Presbyterian ministers of Philadelphia. They were 
moral rather than political, and especially upheld the so-called "blue 
laws" of 1794. 




The Supreme Court of Pennsylvania in 1799 



A PERIOD OF POLITICAL IMPEACHMENTS 253 

to make fun at the expense of that city, and especially of 
the American Philosophical Society, which had its head- 
quarters there. He was fifty-one years of age at this time, 
was a Princeton man, a friend of Freneau, and, like Ad- 
dison, formerly a Presbyterian minister. He studied law 
under Chase, afterward of the National Supreme Court, 
and, with Ross, became a leader of the Western bar. For 
the past three years the whole West and much of the East 
had been reading and laughing over his "Modern Chivalry" 
— the first novel written west of the Alleghenies; he was, 
indeed, a man of national leputation, but rather over- 
much of a free lance for the East. He was at loggerheads 
with Yeates, because of the latter's course as a commis- 
sioner to the insurgents in 1794, and, although he and 
Judge Smith appear to have been friends— at least until 
some uncertain date after the accession of Brackenridge 
to the Supreme Bench — an incident occurred at a dinner 
party, which, according to the late Judge W. M. Hall of 
Bedford, put an end to whatever friendship may have ex- 
isted.^ 

At a certain court presided over by Judge Smith, 
Brackenridge was attorney for the plaintiff in an eject- 
ment suit. As the trial proceeded. Judge Smith's rulings 
seemed unfavorable to the plaintiff, who happened to be 
an ignorant man. Brackenridge, who, delighting in a 
"practical joke," and seeing the anxiety of his client, 
whispered that if he would hand over a few "Half Joes" — 
a coin then current — he would see the Judge at the recess. 
The man handed them over, much to his surprise, no 
doubt. He took pains to see the Judge, of course, never 
for an instant thinking of making such a suggestion, the 
very idea of corrupting him being a vital part of the "joke." 
After recess, however, Brackenridge, who was far more 
sure of his case than his client, noting the movement of 
the case in their favor, and the corresponding elation of 
his client, whispered : "The Half Joes are working!" The 

^ J. Montgomery Forster, Esq., of Harrisburg, informs the writer 
that at a casual meeting with Judge Hall in the State Library some 
years ago the latter told him this story, which, as both gentlemen 
have produced careful historical work, and it has had their confi- 
dence, seems to have a foundation in fact. The story is told else- 
where in a different way. Brown in his Forum makes the client 
take the initiative, and Brackenridge merely follow him. 



254 THOMAS SMITH 

charge to the jury being wholly in their favor, the client, 
in suppressed excitement, whispered to Brackenridge: 
"Them Half Joes done their work!" As Brackenridge 
finished telling this story to the members of the dinner 
party. Judge Smith rose from the table with unmistakable 
indignation, and, turning to Brackenridge, "Sir!" said he, 
"you have done me an injury for which nothing can ever 
atone. That man went down to his grave in the belief 
that I was an unjust Judge. As long as you live, never 
speak to me again." And, it is said, he ignored Bracken- 
ridge ever after, but whether the incident occurred early 
or late in their membership of the Supreme Bench, or 
whether it occurred at all, it is a thoroughly character- 
istic story of both, and an excellent comment on the purity 
of a Judge so well known that it was a joke to find a man 
so ignorant as to be unaware of it. 

Brackenridge, as a leader of Western Republicans, now 
that he was on the Supreme Bench, sought to have Judge 
Addison brought before that court because of an incident 
which happened in connection with one of those offensive 
charges to the grand jury, namely, ordering a colleague 
to be silent when attempting a reply — an incident which 
had serious consequences to the Supreme Court for many 
years thereafter, and consequently to Judge Smith. The 
incident was, in fact, only a part of the widespread Re- 
publican revolt, which had as one of its especial grievances 
the independence of the judiciary by its Constitutional 
term during good behavior or for life. As soon as Gov- 
ernor McKean took his seat the Republicans felt that the 
time had come to begin "Judge-breaking," as McMaster 
calls it,^ and in March, 1800, appealed to the Governor 
to take action on the charges against Judge Addison. It 
was not done, however, and when the incident referred to 
happened in December of that year. Judge Brackenridge 
made his attempt to get the matter before the Supreme 
Court. This, also, was refused, but when a recurrence 
took place, evidently well planned for, Brackenridge se- 
cured the impeachment of Addison before the Senate of 
Pennsylvania in January, 1803, and the latter was deposed. 



* History of the People of the United States, by John Bach Mc- 
Master, Vol. Ill, p. 155. 



A PERIOD OF POLITICAL IMPEACHMENTS 255 

While this long contest was going on in one end of 
the State, there was, at the other end, in the metropolis, 
a contention between Thomas Passmore and :\Iessrs. 
Pettit and Bayard over an insurance policy. The matter 
reached the Supreme Court on August 6, 1802, and on 
September 4 Bayard filed exceptions to the judgment be- 
cause of irregularity. Four days later, while the matter 
was still in the hands of the court, Passmore posted a 
libel on his opponents in a public coffee house. For this 
the Supreme Court brought Passmore before them. After 
sentence had been passed for contempt, Passmore at- 
tempted to make some remarks to the court, saying that 
Bayard had been the aggressor. Judge Smith said this 
was adding insult to injury, and Judge Yeates remarked 
that sentence had passed and they could hear no more. 
He w^as forthwith imprisoned on December 28. Then fol- 
lowed the successful impeachment of Addison in January, 
1803, and forthwith, on February 26, Passmore appealed 
to the House of Representatives to impeach three of the 
Judges of the Supreme Court — Chief Justice Shippen and 
Justices Yeates and Smith. On the 15th of IMarch the 
matter was recommended to the next House, which took 
it up in March, 1804, at Lancaster.^ On the 24th they 
received a letter from Judge Brackenridge, which, after 
stating in detail the unavoidable causes of his absence 
from the bench in certain stages of the case, said : " The 
presumption may have been that I did not take a part, 
and doubtless I might reasonably have excused myself, 
but I cannot say that I did not take a part: I gave the 
case all the consideration that I could, at the time, and 
three fourths of the Court who had heard all, declaring 
themselves fully satisfied I saw no reason to warrant a 
dissent, but concurred. I cannot therefore distinguish my 

^ There were other modes of attack on the judiciary, as the fol- 
lowing letter from Charles Smith to Judge Yeates indicates. It 
shows, too, that the reorganization of 1806 was under way a long 
time. "The representatives," said he on IMarch 6, 1804, "have this 
day passed the loth District (or Judiciary) bill, as it is called, with 
only 18 dissenting voices. It was warmly opposed by Boileau & 
others, on constitutional grounds, to wit, the virtual removal of the 
present Presidents, as the bill stands — but it had no effect on the 
large majority— tlio' it is said it is likely to meet a successful check 
on "that principle in the Senate, from the circumstances of the day.— 
and in all probability it will fall to the ground."— Whelen Papers. 



256 THOMAS SMITH 

case in law from that of the other Judges, and in honor I 
would not. I am far from coveting, or courting a prosecu- 
tion, but am unwilling to incur the imputation of screening 
myself when in strictness equally Hable. But I think it 
absolutely necessary for the credit of the republican ad- 
ministration, that I should not be distinguished. As there 
can be no stronger evidence than a man's own acknowl- 
edgment, the house will find no difficulty in a resolution 
to add my name to the list of the impeached officers."^ 
The committee took this letter to the Governor, assuming 
that he would remove Brackenridge for insolence. Gov- 
ernor McKean refused; they pointed out that "may re- 
move" in the Constitution meant "must remove," where- 
upon the Thunderer reminded them that it sometimes 
meant "won't remove." The House refused to include his 
name with the rest of the court. They applied for legal 
aid in the trial, according to the words of Boileau, to 
Rawle, Levy, both the Tilghmans, and the younger Mc- 
Kean, who avowed that the Judges were right, and refused 
to serve.- Apparently thinking that all the bar w-ere of 

^ From a copy of Judge Brackenridge's letter of March 22, 1804, 
among Judge Yeates' copies of the impeachment papers, endorsed 
by Judge Yeates himself. It is strange that accounts of this highly 
honorable letter should always have attached to it an air of bravado, 
and carried the impression that Brackenridge zvould have concurred, 
not that he did actually concur at the time with the court. These 
Yeates papers are in the possession of Dr. Alfred Whelen, of Phila- 
delphia. 

^ William Rawle, on the fly-leaf of his copy of the proceedings 
at the trial, by Hamilton, now owned by the Law Association of 
Philadelphia, as "Law Trials, 2," says: "I was appealed to on the 
part of the House of Representatives to take a part in this trial, but, 
looking on the impeachment as wholly unfounded, I declined. E. 
Tilghman was also appealed to." McMaster in his History of the 
People of the United States, Vol. IH, p. 159, says that neither 
Dallas, IngersoU nor Duponceau, "nor any lawyer of note in Penn- 
sylvania would serve them," but Mr. Dallas himself said, after ex- 
plaining that none but those who expressed belief that the Judges 
were right declined, and "there were many others at the bar, who 
were not thus circumstanced, and whose talents and legal knowl- 
edge would eminently qualify them to assist the managers on this 
occasion. But they were not appealed to." Proceedings by Hamil- 
ton (Law Trials 2), p. 124. Among the Yeates papers, above re- 
ferred to, there is also Edward Tilghman's own copy of his memo- 
randum made at the time the prosecution invited him to assist them, 
on December 15, 1804. It says: "My answer instantly was: that 
I was clearly of Opinion the Power in Question was constitutional, 
that the exercise was essential to the Advancement of Justice, that 
I had been present at all the Proceedings before the Court in Pass- 



A PERIOD OF POLITICAL IMPEACHMENTS 257 

the same opinion, the managers went to Delaware and got 
Caesar Rodney. Jared Ingersoll and A. J. Dallas took the 
case for the Judges, whose fair character, said Dallas, "to 
this moment is unimpeached." The Senate sat at Lan- 
caster as a court on the morning of January 7, 1805, with 
Speaker Robert Whitehill, the vigorous defender of the 
Constitution of 1776, as President of the court. Before 
them sat the venerable Chief Justice, now seventy-six years 
of age; Justice Yeates and Justice Smith, each sixty years 
old — all Federalists. Dallas and Ingersoll made able and 
eloquent appeals that stir the blood of a reader of them 
a century later. The trial lasted nearly three weeks and 
closed on the 25th, with a vote of 13 for impeachment and 
II against, Speaker Whitehill voting with the majority; 
but as there was not the two-thirds vote required by the 
Constitution, the Speaker announced to the Chief Justice 
and Justices Yeates and Smith that they were acquitted.' 
Very soon after, the aged Chief Justice resigned. 

The people were nearly as excited over the whole 
afifair as they had been in the old days of the contest over 
the Constitution of 1776. The Gubernatorial campaign of 
the year 1805, which resulted in the reelection of McKean, 
was as fierce a fight as that over the adoption of the Con- 
stitution of the United States. The clamor for revision 
of the Constitution of 1790 that arose was anned at the 
judiciary tenure, and finally resulted in the reorganiza- 
tion of the judiciary under the act of February 24, 1806. 
This provided, among other things, that the State should 
be divided into an Eastern and a Western district, where 
the whole court should sit; greater opportunity for Nisi 



more's Case & that the sentence pronounced upon him was a 
very mild one, & therefore could not consistently, \vith my Judg- 
ment, Honor or Conscience be concerned against the Judges. Edwd. 

Tilghman." , o, ■ t- 

'Report of the Trial and Acquittal of Edward Shippen, Esq., 
Chief Justice, and Jasper Yeates and Thomas Smith, Esqs., As- 
sistant Justices of the Supreme Court of Pennsylvania, on an Im- 
peachment before the Senate of the Commonweallh, January, 1805, 
by William Hamilton. In a letter dated February 19, followmg the 
trial, containing the only known expression regardmg it by Judge 
Smith, it refers to some new efforts of the malcontents : I am not 
surprised at anything which may now be brought forward— at any 
misrepresentations of our official conduct, by the dissatished or dis- 
contented party, & there must be always one in every suit decided. 
* * * Letter to Judge Yeates, in the Staufter Collection. 



258 THOMAS SMITH 

Prius courts; that circuit courts should be held in each 
county with only one Supreme Judge on the bench; that 
the High Court of Errors and Appeals should have two 
years to close up its business and then be abolished, and 
that the Common Pleas districts should be increased to 
ten.^ Of course, this relieved the situation, and, so far as 
Judge Smith's lifetime was concerned, the contest was 
practically ended, although, in fact, it ended only with the 
elective judiciary of 1851. 

But what of Judge Smith's work on the bench during 
this long period of over five years? Numerous expres- 
sions of opinion are found for these years in the reports 
of Dallas, Yeates and Binney, but space allows only a few 
significant extracts. At the September term of 1803 he 
found occasion in a certain case to change his mind. He 
said he always thought it more honorable to retract an 
erroneous opinion, when the error w^as discovered, than to 
persist in it, upon the suggestion of a false and pernicious 
pride.^ In another cause, the same year, he charges the jury 
that a certain result ought to be arrived at "in justice to the 
commercial character of our country." " In one of his long- 
est opinions he says : '' I believe no such diversity of opinion 
now exists among judges, or lawyers. For the intention of 
the testator is now looked upon as the polar star. * * * If 
such be the settled rule of law, if such construction has 
become a rule of property, however absurd I may deem 
the distinction, although I may be convinced that it de- 
feats the intention in the disposal of their real estate of 
99 out of 100 testators, who make their wills without the 
assistance of able counsel ; yet I certainly shall not be the 
first to shake it, or any other settled rule of property. If 
this or any other rule of property has crept in, or shall 
creep in, through inadvertency or otherwise, * * * 
contrary to reason, ''^ * * the legislature can, and no 
doubt will, on proper representations, make such altera- 
tions as may be necessary. * * * \\[q must declare 
the law, when clear, without regarding consequences. 
* * * If in England, the law relating to construction 

^ Bioren's edition of Laws of Pennsylvania of i8o5-'o7, p. 9. 
'4 Dallas, 263. 
'Ibid., 272. 



A PERIOD OF POIvITlCAIv IMPEACHMENTS 259 

of wills, as well as in other instances, be daily melting 
into common sense, more and more disentangled from 
the feudal fetters, which too long continued to enchain the 
understanding; if form gives way to substance, and justice 
be no longer entangled in a net of law, it would ill be- 
come us, to let a feudal drag-chain defeat the intention of 
a testator. '■• =5= '■'■' That intention, however, cannot be 
carried into effect, if it be contrary to every clear and 
settled rule of law * ^= =^= ."1 In a case in 1802 he 
said: ''I am conscious that I listen to the arguments of 
counsel in every case with attention. I will not say that 
in this case I listened with more than usual attention. I 
certainly did not employ less, especially as we and the 
parties have been deprived of the abilities of our elder 
and more experienced brothers. Judges cannot even in 
their judicial capacities entirely divest themselves of the 
feelings of men. The humane mind generally sympathizes 
with bail, who are obliged to pay for the default of the 
principal * ■'- '■' ."- 

In one of his longest and ablest opinions, namely, in 
Mitchell v. Smith, 1804, he expresses his conviction in the 
following strong terms: "If there ever was a case, in 
which political arguments ought to have great weight, if 
ever, were the case even doubtful, arguments from utility 
and public policy ought to turn the scale, if upon principles 
of law, conveniency and sound policy, the original plaintiff 
ought not to prevail, this is that cause, perhaps more em- 
phatically so than any other cause which ever came before 
any court in this state. * * * i might rest here on 
this point: but because next to the duty of administering 
justice between the litigant parties, is that of convincing 
the losing party, that the whole case has been examined 
and considered by the court, I will" etc.^ 

^ 3 Yeates, 235, 1801. 

^ Ibid., 347, 1802. Probably attention should have been drawn to 
the case mentioned in 2 Smith's Laws, 190, and also in Huston on 
Land Titles in Pennsylvania, 427, a case before Judges Smith and 
Brackenridge at Lewistown in 1800, in which Judge Smith gave the 
charge to the jury. "This," says Huston, "is called a leading case, 
and always cited and recognized, when any of the four points come 
in question." 

^4 Yeates, 89. Judge Charles Smith, who edited these reports, 
inserts this as an "able argument," not contained in Mr. Binney's 
report of the case, i Binney, no. 



26o THOMAS SMITH 

In a dissenting opinion bearing on forfeiture for 
treason is an interesting paragraph : " In every nation, 
under every government, there are many men of gloomy 
discontented minds, of vehement spirits, of disappointed 
or perverted ambition, of desperate fortunes. The minds 
of such men are restless, ever on the rack to gratify their 
malignity or their ambition, or to repair their shattered 
fortunes. So far as they consider themselves they are 
desperate; the peace, welfare, or happiness, or even the 
existence of government which protects them can have no 
influence in restraining such men from the most desperate 
measures to accomplish their purposes. The only human 
consideration which can withhold them from endangering 
the nation, is their attachment to their wives and children, 
which is frequently implanted, for wise purposes, unusu- 
ally strong in the minds of such men by the all wise Author 
of our being. From this point of view the law of forfeiture 
is merciful to mankind ; it may sometimes be productive of 
partial ill, but its general effect will be universal good.'" 

During the period from 1799 to 1805, inclusive, Judge 
Smith sat at every term of the High Court of Errors and 
Appeals except in 1799. There were sessions in which he 
was present but part of the time, as in 1800 and 1804, but 
there were few Judges who gave so constant service. At 
the session beginning January 2, 1805, he was the senior 
member of the Supreme Court present, and, consequently, 
presided over the deliberations of the High Court, in the 
absence of the venerable President, Benjamin Chew, who 
had presided until the year before, at the advanced age of 
eighty-two years. There was an attempt to have Judge 
Chew preside in July, 1805, when the city members heard 
he was to be in town. They had met at the court house 
and there was no quorum, so they adjourned to the house 
of Chief Justice Shippen, in Fourth street; Judges Shippen, 
Smith and Rush went from there to President Qiew's town 
house, but still there was no quorum. So far as known, 

1 I Binney, 18. In a letter of February 23, 1799, to Judge Yeates 
about this case and hinting at these views, he says: "I believe the 
matter is differently considered here, but should we even ultimately 
all think alike, the question is of that nature, that it is incumbent 
on us to give the reasons of our judgment with the utmost legal 
precision, which will be still more necessary if we should diflfer." 
Stauffer Collection. 




3 

y Ti 

y? O - 



< g o 



A PERIOD OF POLITICAL IMPEACHMENTS 261 

however, that is the last time this remarkable man met 
with the Judges, although he lived to the great age of 
eighty-eight years, and even survived Judge Smith him- 
self. It seems to be almost a tribute to President Chew 
that when age incapacitated him, the highest of the tri- 
bunals, of which he was the head for considerably over a 
decade, should be abolished, as it was the following year, 
ahhough allowed two years in which to close up its busi- 
ness. The meeting above mentioned, at President Chew's 
residence, was also notable in another respect, in that it 
was the last meeting of the High Court that the other 
venerable Judge, Chief Justice Shippen, ever attended. 

With these two notable changes in the two high tri- 
bunals, Judge Smith became, next to Judge Yeates, the 
senior member of both courts, and a period of his life is 
thereby marked. It will be well to let him speak for him- 
self of this period. On March 4, 1799, he wrote Yeates: 
"I made up my opinion on the question of Curtesy after 
I wrote to you last — in considering it attentively, new 
Ideas presented themselves to me, which were not touched 
on in the arguments. If I am right the cause was not 
well argued. I beg leave to detail my present Ideas on 
the subject, to you as fully and at large, as you detailed 
yours to me, making no doubt but you will give my senti- 
ments as much consideration, as you have enabled me to 
give to yours." ^ In a later letter to Yeates he speaks 
of the lameness of the horse he rode upon the circuit: 
"My punishment is just — my judgment directed me to 
part with him last fall & to buy another, during the winter; 
but my regard for an old & faithful & decent steward 
prevented me from obeying the direction of my judg- 
ment." ^ With all his courtesy, Judge Smith was blunt, 
as the following to Yeates will show: "If you think I do 
not take pleasure in performing any business which you 
commit to my care — why the D — 1 do you trouble me with 
it. I hate apologies when none are necessary, & not being 
necessary, they are improper."^ He occasionally gives some 
very interesting glimpses of Yeates, who was a most 



^Stauffer Collection. This, no doubt, refers to the case in i 
Binney, 18. 

^Ibid. Letter of April 15, I799- 
*Ibid. August, 1799. 



262 THOMAS SMITH 

methodical man and insisted on careful receipts when 
he sent the Philadelphia Judges their salaries from the 
State Treasurer at Lancaster; Judge Smith says he assured 
the Chief Justice "that according to your Plan (which 
word he says you have substituted for the word System, 
which has been so long & so frequently hackn'ed by you 
that he supposes you have worn it threadbare — in which 
Mr. Lea laughingly joined him) he ought to send you a 
receipt for the checks by the first Post. 'What!' said he, 
'&. as he will send me a check for my circuit allowance, I 
must send him a receipt for that also & so have the Post- 
age of two letters to pay — that won't do: you call me an 
oeconomist — I will give you an instance worth your imita- 
tion: to avoid double postag'e I wrote my last letter under 
my account for allowances for circuit expenses & scarcely 
left myself room.' 'By Jupiter,' said I, (you, a classical 
swearer, would say by Jove) 'I did the very same thing 
in my last letter & after having done so, I discovered I 
had written on the place where the wafer ought to be,' " but 
by the "greatest good luck in the world" he found space 
for it elsewhere.^ In another letter to him, Judge Smith 
states his own custom regarding recommendations for 
ofifice: "It is my uniform rule never to recommend any 
Person for office; this I repeatedly told the late Governor, 
& the reason on which it is founded, in a Commonwealth."^ 
On the 25th of August, he tells Judge Yeates, at whose 
home his daughter is visiting, something of the birth of 
another son, saying: "If you do inform her [the daughter], 
tell her that her Mama has given her Brother a great name 
— every Patriotic American will guess. I need not say 
George Washington."^ 

^ Stauffer Collection. July 4, 1800. 

^ Ibid. August 2, 1800. 

* Ibid. This son, the third, the other two having died in in- 
fancy, was born August 4, 1800, and was their last child. (Another 
daughter, Frances Sophia, had been born September 15, 1798.) He 
grew to manhood under the guardianship of Chief Justice Tilghman, 
graduated at Princeton in 1818, and after studying law under Horace 
Binney, was admitted to the bar in 1823. His scholarly tastes led 
him to travel and exploration in Europe and Asia. As a member 
of the vestry of Christ Church for thirty years, his benevolence and 
financial ability led him to give $5,000 to its hospital every year. He 
was a member of the American Philosophical Society from 1840 
until his death, and was a founder, councillor and vice-president of 
the Pennsylvania Historical Society. In 1824 he published "Facts 



A PERIOD OF POUTICAL IMPEACHMENTS 263 

Many letters of this period exist, which would be of 
technical niterest to lawyers, but cannot be considered 
here. Among the letters to Scotland, however, appear the 
follownig interesting glimpses of his personal and family 
life. After speaking of his three eldest daughters, he says: 
"The 3 next are now at the schools. I removed from 
Carlisle to this expensive place, for the purpose of having 
my daughters educated;— the Country not yet being fur- 
nished with Schools for female Education; they learn 
Reading & Writing accurately. Arithmetic, Geography, 
Dancing— and such as have an ear for it. Music. My 3 
eldest play on the Forte Piano, '■'' * * I have since I 
wrote the last line, performed a Hymn on the same in- 
strument myself this Easter morning, as is my custom 
every Sunday morning, as soon as I rise. Having occa- 
sionally amused myself during 30 years with the Violin, 
I immediately learned the notes of the Forte Piano; but 
before I bought one for my daughters, my fingers had be- 
come too stiff (my right hand being lame as I formerly 
mentioned to you), for me to perform with ease. My two 
eldest daughters learned French also for awhile, so that 
my eldest could write to me in that language, but that 
nation & language falling into disrepute here, the school 
was broken up, and they have, I suppose, forgotten what 
they did learn. Their valuable mother, as remarkable for 
her industry, as for oeconomy, brings them up to both — 
* * *; my eldest or y^ could keep house & manage 
the affairs of the family, should the greatest of all mis- 
fortunes happen to me and to them. By the example of 
such a Mother, Religion is made amiable to her Daughters 
— five of whom walked before us to Church on Friday 
(Williamina E. remaining at home to superintend the 

family affairs). Mrs. S took Juliana to our worthy 

Bishop yesterday to be confirmed & they are all preparing 
to join in the Rites of the day — I must remain at home to 

and Arguments in Favor of Adopting Railroads in Preference to 
Canals;" in 1829, "Defense of the Pennsylvania System in Favor of 
Solitary Confinement of Prisoners," and other like essays, and in 
1832 edited "Wood on Railroads." He never married, and his 
nephew, G. W. J. De Renne, Esq., to whom he was much attached, 
was the closest friend of his later years. He died on April 22, 
1876, in his seventy-sixth year. His home was at 9 Clinton street, 
Philadelphia. 



264 THOMAS SMITH 

finish this Letter. My beloved wife was, by the effects of 
the War, deprived of almost the whole of the fortune which 
she expected to bring me; but she has proved a fortune 
herself, & has essentially assisted me in acquiring a com- 
petency, very far beyond my expectations or merits. I 
will be explicit on this head in hopes to prevail on my 
Mother to accept the small present which I offered her, 
without any hesitation because of my large family, if she 
has the least occasion for it. By the blessing of God 
upon my unwearied industry, I am worth about twelve 
thousand guineas. (My salary is only 2000 Dollars a year 
at 4/6 Sterling each — the expenses of my family including 
the Interest of the [debt?] on my house, nearly 4000 Dol- 
lars which I supply by the Interest on my money) — 'With 
upwards of two thousand Guineas of it, I bought an elegant 
new House near the upper end of High street, being the 
most pleasant situation in Philadelphia, where I enjoy the 
advantages of both the Town & of the Country — a thick 
wood grew where I now sit many years after I came into 
this Country."^ 

He began to feel the weight of age and exposure about 
this time. "I begin to feel the weight of years: my aged 
Parent must feel it much worse: the general weakness 
which you mention, is a forerunner of her removal from 
this state of being; may her few Days be serene & her 
dissolution easy, most fervently prays to God her dutiful 
son, who must not hope that heaven will permit him to 
arrive at the good old age which his Mother has attained." 
In this letter, too, he says: "Writing is easy to me, as the 
habit of writing on the Bench enables me to take down the 
substance of every speech at the Bar ; being obliged to 
write so fast is the reason that scarcel}^ any Judge or 
Lawyer writes a good hand. In addition to this I have, 
as I mentioned to you before, a wound in my right hand 

^ Letter to his cousin, Dr. Peter Smith, Aldie, in Cruden, dated 
April 18, 1802, in the De Renne Collection. He gives some most in- 
teresting items about his brother, Dr. William Smith, to whose de- 
clining years he had long given most careful attention, so that, could 
the enfeebled old Provost have foreseen it, he would also have re- 
ferred to his jurist brother, for whom the doctor had the tenderest 
affection, as "my benefactor." Their obligations were thoroughly 
mutual, long before the end of the Provost's life came, on May 14, 
1803. He was the latter's legal adviser and named as one of his 
executors. 



A PERIOD OF POLITICAL IMPEACHMENTS 265 

by a fall from my Horse." ^ In another letter to his cousin 
and referring to Scottish Judges, he says: "Your Judges 
can have no idea of the severe duty which we perform. 
I am going a Circuit of between 6 & 700 miles, over the 
Allegheny Mountains, next week." This is the letter in 
which he says: "Looking on Mr. Boswell as a heavy 
writer, I did not, till lately, read his 'Tour to the Hebrides 
with Dr. Samuel Johnson.' 1 have not the Book by me 
at present, having had it from the Philadelphia Library, 
of which company I am a member; according to my recol- 
lection he says that when they were at Slaines Castle Mr. 
Boyd (William, I suppose, or Charles) told them the Earl 
had educated a son of one of his tenants for, & employed 
him as, a Surgeon on his estate — that the Surgeon so edu- 
cated had acquired property sufficient to enable him to 
reimburse the Earl conveniently; which he ofifered & the 
Earl declined with equal honor to both. Had I not be- 
lieved that you received your education during the life 
time of the Countess of Errol, Aunt of the late Earl, I 
should suppose you were the person meant — how is it?"^ 
In this letter, too, he again speaks of failing health: "My 
health I feel gradually declining, although I am very well 
just now; the duty of a Surveyor is very severe, & under- 
mined my constitution 25 years ago. My Professional 
duties at the Bar [were] uncommonly laborious, having 
for 9 years rode upwards of 3,000 miles "(9 annum, over 
the most mountainous parts of the State, * * * Since 
I was appointed a Judge, our duty has been very hard in- 
deed, owing to the rapid increase in the population of the 
State. We had only 13 counties a few years before I came 
on the Bench; we have now no less than 30 & yet the 
number of Judges is the same. I have twice been on the 
point of resigning, on account of my health. It was not 

'Letter to his cousin, Dr. Peter Smith, of Aldie, in Cruden, 
dated June 12, 1802, De Renne Collection. It is unfortunate that 
these notes on speeches of lawyers are lost, or, at least, not yet 

found. . tt-^r r, II U 

" Dr. Peter Smith, on March 25, 1805, writes : Mr. Boswell has 
been wrongly informed as to the late Lord Erroll being at the ex- 
pense of my education; he was right so far: when I left the Ldin. 
College in the year 1762, I borrowed either 5 or 10 pounds sterling 
to assist me to pay the fees of the college as it was due, which sum 
when I was in cash, I offered to his L-^ship again, but he would 
not take the money." De Renne Collection. 



266 THOMAS SMITH 

till 3 Days ago that I believed I would be able to go the 
long western circuit this autumn. I have for i8 years 
been afflicted with a cough which I caught by being obliged 
to sit up all night (i^^ January) in a frontier Court House, 
trying a cause ; at times & especially of late it has been very 
violent, approaching frequently to an Angina Pectoris. 
After my own long Circuit into 8 distant Counties this 
Spring was finished, I felt myself obliged to go part of 
the Circuit of the Chief Justice & of Judge Yeates, by 
reason of their sudden indisposition. I had to hold Court 
in one county by myself ; the weather was excessively hot, 
which affected my head very much. * * ♦ j certainly 
received a degree of the coup de Soliel."^ On January 3, 
1805, he says: "Our Court ended this day — from the last 
week in August inclusive — a period of four months, one 
week and 3 Days, I have been sitting in court or on the 
Road between the Courts (650 miles riding) every Day 
excepting 3 Days. Your Judges in Britain would deem 
this intolerably hard official duty."^ In most of his letters 
from this time on there is generally evidence of his illness, 
much of which he attributed to the sunstroke above- 
mentioned. On August 23 (1805) Chief Justice Shippen 
writes to Judge Yeates : " I find our Brother Smith very 
much averse to the labour of charging the jury; in order 
to avoid it he has adjourned one cause till the next morn- 
ing that I might be present to give the charge. * * * 
Mr. Smith has offered as an expedient that he would travel 
my usual circuit."^ 

^ Letter to Dr. Peter Smith, September 16, 1804. De Renne Col- 
lection. 

- De Renne Collection. In this letter he speaks of the publica- 
tion of the last volume of his brother's works, and mentions the en- 
graving of his brother as the best "of any I ever saw done in 
America. It is from a Picture, equally striking, Painted by Mr. 
Stuart, the most celebrated Portrait Painter in the United States, 
when my brother was 75 years old." This latter portrait is now 
owned by Dr. John H. Brinton, of Philadelphia, and the former may 
be seen in the first volume of tlie first edition of Dr. Smith's works. 

* Shippen letters, in Dr. Alfred Whelen's collection. 



XIII 

Member of the Supreme Court and High Court of 

Errors and Appeals of Pennsylvania 

1794-1809 

III. The Chief Justiceship of Tilghman, 1806-1809. 

The turbulent political year 1805 witnessed still other 
changes than have been already mentioned in connection 
with the last meeting of Judge Chew with the High Court 
of Errors in July. This meeting of the two venerable 
heads of the highest tribunals in Pennsylvania — for Chief 
Justice Shippen was now seventy-six — must have im- 
pressed the Chief Justice very much. Very soon after, in 
the autumn, he sought to resign, but, says Edward Burd 
on November 18 in a letter to Judge Yeates, "as the 
Governor was under some difficulties in ye Appointment 
of a Chief Justice, I understand that Mr. Shippen has con- 
sented to continue to serve some time longer,"^ At the 
close of the December term, however, the aged Chief Jus- 
tice resigned, and on the last day of 1805 the resignation 
was accepted. On January 13 (1806) Mr. Burd again wrote 
Yeates: "My opinion is that the World has been much 
deceived with respect to ye Governor's Intention of filling 
ye Office of Chief Justice. He is so close-mouthed that 
ye Reports depend only upon Supposition. General St. 
Clair who is just arrived from Lancaster, says ye current 
Report there is that James Ross is to be ye Man; — which 
I do not give credit to." Some one, he adds, asked Mr. 
Shippen who was to be Chief Justice and he replied that 
"some people supposed that Mr. Wm. Tilghman, others 
that Mr. McKean's Son would be appointed, but he knnv 
nothing about it."^ Governor McKean had already shown 

*The Burd Papers, edited by Lewis Burd Walker, p. 211. 
'Ibid., p. 212. 

267 



268 THOMAS SMITH 

his resistance to the wild and reckless reaction of the 
Democratic Republicans, and it was safe to predict that, 
even though in the Supreme Court, as it now stood, Yeates 
represented the Lancaster region, Smith the mountain 
region and Brackenridge the west, and the remaining 
member ought, for territorial reasons, to come from Phila- 
delphia; Governor McKean well knew that the time had 
not yet arrived when the Chief Justice could be chosen 
outside of Philadelphia. Otherwise, Justice Yeates might 
naturally have been promoted, as Shippen had been. In 
consequence, the Governor offered the position to "a 
leader of the old bar of Philadelphia," who declined to aid 
the prosecution in the late impeachment, namely, Edward 
Tilghman, who, says Binney, had "the most accurate legal 
judgment of any man of his day, at the Bar of which he 
was a member."^ Mr. Tilghman, however, like Horace 
Binney himself at another time, declined the offer and 
recommended his scarcely less distinguished kinsman. 
Judge William Tilghman. 

Judge Tilghman, now fifty years of age, had spent much 
of his life in Maryland, and only settled in Philadelphia 
permanently but a year before Judge Smith did. He was, 
however, a son of the Secretary of the Proprietary Land 
Ofifice of Pennsylvania, James Tilghman, who was a law- 
yer ; he was a grandson of that legal pioneer. Tench 
Francis, a student under Provost Smith, and began the 
study of law under Benjamin Chew about the time Judge 
Smith began practice in 1772. Late on the night of March 
3, 1 801, President Adams had made him Chief Judge of 
the Circuit Court of the United States for his home circuit 
— one of the so-called "mid-night Judges" — a court that 
the Jeffersonian Republicans abolished a year later. About 
the time that his venerable preceptor, Chew, was holding 
his last meeting with the High Court, Judge Tilghman 
was appointed President Judge of Common Pleas of Phila- 
delphia — a position from which the late Chief Justice had 
entered the Supreme Court and a very natural place to 
look for a Chief Justice. Governor McKean nominated 
him. Forthwith the Democratic Republicans of Philadel- 

^The Leaders of the Old Bar of Philadelphia, by Horace 
Binney; extra iUustrated edition, p. 51, at the Law Association, 
Philadelphia. 




The Scpremk Colrt oi 1>knnsm.\ am.v in iSo6 



HIS CLOSING YEARS 269 

phia entered a protest, whereupon the Governor turned to 
the committee: "Indeed! Inform your constituents that I 
bow with submission to the will of the great Democracy 

of Philadelphia; but by , William Tilghman shall be 

Chief Justice of Pennsylvania!"^ And Tilghman was com- 
missioned on February 25 (1806) and took his seat on 
the bench on March 3, the first day of the spring term — 
the youngest member of the court by eight years.- "His 
person," says David Paul Brown, "was slightly formed; 
he was about five feet eight inches high, with mild gray 
eyes, fine teeth, handsome features, and of the most gentle 
and amiable expression of countenance. ■•' * * His 
voice was very sweet though not strong, and his deport- 
ment upon the bench was marked by that attention which 
springs only from a conscientious desire of a faithful per- 
formance of duty."^ It was not long before it became 
evident that the solution of the problem that made Tilgh- 
man, Yeates, Smith and Brackenridge the members of the 
Supreme Court in 1806 was the best that could have been 
made. 

The earliest reported opinion of Judge Smith, under 
the reorganized court, was at the December term of that 
year, on a case never before decided in Pennsylvania. "The 
question now to be decided by this court," said he, "is of 
great importance. I understand that it has long been 
discussed among the most eminent counsel in Pennsyl- 
vania, and opinions have been given by some of them; 
but that it never has received a judicial decision. I be- 
lieve, on inquiry, that it never came before any Court in 
Pennsylvania until the 24" of May, 1804, when it came 
before the Circuit Court, holden for the County of North- 
umberland, by Judge Brackenridge and myself. * * * 
We said that 'it is an important question, and it is proper 
that it should receive a solemn decision in bank; we there- 
fore propose, that the measure of damages should be left 
to the jury, on each of these grounds, which is done ac- 
cordingly.'' * '^' * After my return I was induced to 
make diligent inquiry, whether the point had ever been 
decided, and what had been the general opinion of eminent 



' The Forum, by David Paul Brown, Vol. I, p. 344- 

^4 Yeates, 278. 

' The Forum, Vol. I, p. 393- 



270 THOMAS SMITH 

counsel on it, and the result was that expressed by tHe 
Chief Justice. Upon a very attentive perusal of the cases 
on the subject; the notes of which, taken by me then, and 
annexed to that case, are now before me; they did not in 
my opinion warrant me in drawing- a different conclusion; 
but I saw difficulties, whether the question was decided 
one way or the other, which made me anxious to hear it 
deliberately argued: ready to alter my opinion, if I should 
discover, that it was not well founded; or if the opposite 
should be supported by law, be more conducive to the 
general interest, and be more agreeable generally to the 
intentions of the parties to such contracts. I have heard 
it very well argued. If the very well arranged and able 
argument of the ingenious young gentleman who began 
(Mr. Sergeant) has not been able to shake the opinion 
which I had formed, I am induced to believe that it is well 
founded on solid principles of law. I must, therefore, ad- 
here to it upon the present occasion;" and the court sup- 
ported his former opinion.^ 

Early in 1807 he expressed a rather full opinion, in 
which the following occurs: "Whether the great strict- 
ness in favour of life, which has at all times been required 
in England, in every point of indictments in capital cases, 
ought to extend to indictments for offences formerly cap- 
ital in Pennsylvania, but now subject only to imprison- 
ment at hard labour, and a certain proportion of the time 
to confinement in the solitary cells, will deserve great con- 
sideration when the point comes directly before the court. 
For the humane Judge Hale complains, and the complaint 
has been a thousand times repeated since his time, 'that 
this strictness has grown to be a blemish.' * * * So 
far as these unseemly niceties have prevailed in cap*- 
ital cases decided before the revolution, we are fettered 
by them. We are not at liberty to overrule an exception 
which has prevailed before in a case exactly in point, 
although every judge and every well read lawyer who 
hears it, may be convinced it has no foundation in the 
merits of the particular case, or in the general principles 
of law. However, great as this evil undoubtedly is, it is 
perhaps better that it should be submitted to, than that 

* 4 Dallas, 412. 



HIS CLOSING YEARS 271 

the opposite evil should creep into its place. * * * 
This consideration will make us 'rather bear those ills we 
have, than fly to others that we know not of.'"^ 

During the same year he most happily and modestly 
expresses the only dissenting voice in the court. Refer- 
ring to the opinion expressed by the Chief Justice and 
concurred in by the other Justices, he says: "But as I 
cannot concur in the opinion which he has delivered, it is 
incumbent on me to state the reasons of my dissent. I 
know that my brothers do not suppose me capable of dif- 
fering from them, by an affectation of singularity, or with 
a view to court popularity, or to avoid the reverse on pop- 
ular questions. When I am compelled to differ from the 
majority of the court, it becomes me not to be arrogantly 
confident in my own judgment; but such as it is, I must 
be guided by it. I am the less diffident of it, because it 
very generally leads me to concur with my brothers. 
* * * Upon the whole, after the short consideration 
which the various business in the court has enabled me to 
devote to this case, I am much afraid, that should we sanc- 
tion this verdict and principle, 

""Twill be recorded for a precedent; 

And many an evil by the same example 
Will rush into the State.'" " 

Early in the year, Judge Smith showed signs of still 
greater decline in health. On the 29th of January, 1807, 
he writes his cousin in Scotland: "I caught a bilious 
remitting fever on the Circuit, the last week in September: 
it is a disease frequent in this Country in Autumn. I never 
had it but once & that was so long ago as 1773, & then 
but slightly in comparison to this fit. * * "■•' I then 
sent for Dr. Rush. >:• * * j ^as obliged to be absent 
the first two weeks of the December term & scarcely able 
to attend the y^ week. I had not before been absent from 
Court 6 hours during upwards of 15 years when I was 
first appointed to the bench. I was so enfeebled by the 
disease that I am recovering but gradually. I had lost 
my appetite & colour: both & my strength are restored 
so much that I was able to Dine yesterday with the 

^ I Binney, 206. 
" 4 Yeates, 476. 



272 THOMAS SMITH 

Marquis de Casa Yrujo, who has been many years the 
Spanish Minister here; but Mrs. Smith would not let me 
walk either thither or back. I therefore at her request 
used our Coachee, as I did from necessity during the week 
that I attended court. '-^ '-^ * If, as I hope, I shall be 
again restored to as much health as can be expected in 
my 62"^^ year, after a very fatiguing life during 38 years of 
it, I cannot be sufficiently grateful to the merciful & 
beneficent Creator & Preserver of my Being. My Circuit 
last autumn was 762 miles — most of it on our new settled 
frontier, roads & accommodations bad of course. * * * 
Perhaps, my Dear Cousin, this will be my last letter to 
you. Even if it should not — if I should be permitted to 
write you again, yet, according to the usual course of 
nature, in the course of very, very fezv years you & I must 
be changed from this state of being — must give an ac- 
count of the deeds done in the body. * ^i^ * j have 
long [been] impressed with the belief that I should not 
live to a greater age [than 65 years] — judging by my 
present feelings, I do not expect to live so long: in my 
present apprehensions, it is a consolation to me that al- 
though I cannot leave a fortune to my family, I will prob- 
ably leave them a moderate competency: I never have 
wished more: — I believe I have no reason to wish it were 
a farthing less than it is." ^ 

Four days after this letter, he and Mr. Tilghman held 
a criminal court for two weeks in Philadelphia. During 
the second week — the coldest day of the session — the court 
house was so crowded that the windows had to be opened, 
and a draught caused an attack of pneumonia. He was 
then confined to his bed for three weeks and so reduced, 
he says, that at the end of six weeks, even, he could hardly 
get on his horse. On March 10 (1807) Judge Yeates writes 
his wife: "Judge Smith rides out daily, but looks miser- 
ably, I think he will be scarcely able to attend Court 
this term." Ten days later, however, he wrote her again: 
"Judge Smith was in Court this forenoon, but his looks 

^ Letter to Dr. Peter Smith, of Aldie, in De Renne Collection. 
In this letter he speaks of his children just going to the "first Danc- 
ing city Assembly of the season" and his usual habit of going with 
them. He also refers to a legacy he provided for his mother "32 
years ago" — 1774, in his will of that date. 



HIS CLOSING YEARS 273 

are very much against him. He seems pale and weak & 
his voice is scarcely audible. His constitution is evidently 
much shattered, and I think him in some considerable 
danger. Yet, I still flatter myself that the warm weather 
will restore his health."^ He attended but a few days at 
this term, and his feeble condition led Chief Justice Tilgh- 
man to offer to go out on a distant circuit for him. He 
himself went out on a nearer circuit and was in so bad a 
condition that "the Lawyers on behalf of themselves & 
their clients — the jurors also — joined in intreating me not 
to sit in court more at the great risque of my life; but I 
persevered."^ He was ill a short time, but seemed again 
to improve some. 

About this time, April 7, 1807, to be exact, the Legis- 
lature, still Democratic Republican, with Simon Snyder as 
Speaker of the House, passed an act requiring the Justices 
of the Supreme Court to report "which of the English 
Statutes are in force in this Commonwealth, and which 
should be incorporated into the Statute law of the State." 
This was a work to which Judge Smith would be better 
able to give attention than that of the courts. The work 
took the better part of two years and was possibly the 
most important work on which Judge Smith was engaged 
during the rest of his hfe. It was not completed until the 
8th of December, 1808. "This important document," said 
Horace Binney, in his third volume of decisions, "is here 
inserted at the request of the Judges of the Supreme Court. 
In many respects it deserves to be placed by the side of 
judicial decisions, being the result of very great research 
and deliberation by the Judges, and of their united opinion. 
It may perhaps not be considered as authoritative as 
judicial precedent; but it approaches so nearly to it, that 
a safer guide in practice, or a more respectable, not to say 
decisive, authority in argument, cannot be wanted by the 
profession."' Judges Tilghman, Yeates, Smith and Brack- 
enridge say in their report that it was "executed during 
the short intervals of official occupation."* 



^Whelen Collection. . 

"Letter of January 11, 1808, to Dr. Peter Smith, m De Renne 
Collection. 

^ 3 Binney, 595- 

'Ibid., 598. In a letter to Judge Yeates, dated July 8, 1807, 
and enclosing an official copy of this act, Judge Smith writes of it : 



274 THOMAS SMITH 

During the summer of 1807 he was at Bedford Springs 
a part of the time, to have the benefit of the mineral waters 
there, and prepare him for his autumn circuit in the west- 
ern part of the State. He had some severe exposure and 
finally an attack of the influenza, which prevailed so greatly 
that not one in a thousand, he says, escaped it. He adds 
that it was the second time it was epidemic since his ar- 
rival in America. The disease seemed not to leave him, 
and caused a violent and persistent cough and catarrh, 
which added greatly to his other difficulties. He recov- 
ered, however, and was performing his duties in 1808. 

In an able charge to a jury while on the circuit during 
this year, his conscientious sense of accuracy led him to 
administer a rebuke to certain members of the bar. "It 
is to be regretted," said he, "that gentlemen of the bar 
will not take accurate notes of trials, and yet will cite 
the cases as authority. I have before heard of the case 
5n Northumberland, and have no hesitation in saying 
there must have been some circumstances which are not 
stated, or it is not law." This charge was sustained by 
the Supreme Court about three years later, "for," said 
Chief Justice Tilghman, "the opinion delivered by Judge 
Smith to the jury appears to have been in matters of law 
correct."^ His absolute frankness, too, was illustrated in 
an opinion during this year, in which he sees no relief for 
the loser; "but," said he, "I think the case is peculiarly 
hard on the defendant."^ His expressions became more 
and more short and concise during this year. His last 
reported opinion is a dissenting one at the December term 
of 1808. He says that had the point reserved been in the 
usual form, he should have agreed with the rest of the 
court. "But the words 'under the circumstances of the 
case' have some meaning, and were inserted for some pur- 
pose. If it was not intended thereby to empower the court 

"This is impossible, during the time that we can devote to the busi- 
ness. I am much afraid that I will scarcely be recovered from the 
fatigues of Court, in time to proceed to the Court at Pittsburgh. 
This business will require much deliberation, consultation, & time 
to perform it with reputation to ourselves & to the benefit of the 
Community. I dare not engage my mind on it in my present weak 
state." 

^4 Binney, 163. 

" 4 Yeates, 556. 



HIS CLOSING YEARS 275 

to investigate and decide on the merits, they were worse 
than nugatory; they tended to perplex. I am glad there- 
fore that, if I have discovered during the course of the 
argument that injustice has been done, I am at hberty to 
give my voice for a new trial, although it has not been 
moved for within the four days. More than one of the 
court during the argument said that a motion ought to 
have been made; but I rejoiced that the strong inclination 
of my mind, the justice of the case, was not fettered by 
form." ^ 

During this year, also, the High Court of Errors closed 
its existence, the last session being held the morning of 
the 26. of July (1808).- Judge Smith, however, had his 
last service in it at the meeting on December 29, 1806, 
when there was no quorum, although, of course, he was a 
member of the court until its close. This also was the 
last meeting of it which Judge Rush attended — the man 
who had a longer period on this high tribunal than any 
other, namely, almost a quarter of a century. Ex-Chief 
Justice Shippen, who had died the spring before this last 
meeting attended by Judge Smith, came next in length 
of service, about twenty-two years, while only McKean's 
two decades on its bench exceeded the long service of 
about fifteen years which Justice Smith himself gave to 
it. Of others, only President Chew approached him in a 
period of almost similar length, and it may be recalled that, 
omitting McKean, these were the very members who con- 
stituted that last meeting with President Chew in July, 
1805. In less than a year after this last-mentioned meet- 
ing Mr. Shippen died, and on that evening Judge Smith 
wrote Judge Yeates: "On last Saturday I dined in a com- 
pany at the Chief Justice's [Tilghman] — but 3 Days ago 
his venerable Predecessor sat there next to me, ate a 
hearty dinner & was as cheerful as usual & we came away 
early together — to-day he had nearly finished a full Dinner, 
& now, in the manner he has expressed his wish to me, & 
I find to others, he sleeps with his Fathers, at a good old 
age, having possessed his faculties to the last, & died with- 
out a groan, respected by all who knew him & most 

^ I Binney, 457. 

^Docket of High Court, in the office of the Prothonotary of 
Supreme Court at Philadelphia. 



276 THOMAS SMITH 

esteemed by those who knew him best. * * * jf yQ^ 
outlive me you will probably learn from my will, that I 
believe I will die suddenly in Spring or Autumn. May we 
after having performed our duties in this state of being 
as well as our late Brother has done, enjoy our faculties 
to the end of it, & leave it with the love of our families 
& connections & with the esteem of the worthy part of 
our species to whom we are known." ^ 

The end came for Judge Smith, also, in the way he 
desired. Even on the 226. of September, 1808, Judge 
Yeates, writing his wife from Washington, Pennsylvania, 
says: "Judge Smith was not so well as I could have 
wished when we parted. His health is in a very ticklish 
situation, and I dread the effects of the bad weather on 
him, when he crosses the Allegheny river." ^ At the De- 
cember term, following, the one at which his last recorded 
opinion was delivered, the spring circuits for 1809 were 
arranged, and Judge Smith was assigned to the Delaware 
District. He was to hold a Nisi Priiis court at Philadel- 
phia for four weeks, beginning February 20, at the end 
of which, on March 20, the general Supreme Court for the 
Eastern District was to begin. The day before the general 
term, namely, March 19, Judge Yeates wrote from Phila- 
delphia of him, saying: "I am told he is much better."' 
Court began on the 20th, with Judge Smith present, but 
he was so feeble that he was urged not to attend. He did 
attend, however, but on the morning of Wednesday, March 
29, "Judge Smith left his seat on the bench in consequence 
of indisposition."* For a few weeks past he had been 
annoyed by a dizziness, which he attributed to having 
taken so much tincture of iron and other remedies, one 
of which seemed to stop a gentle perspiration to which he 
had become subject. Dr. Rush attended him. When he 
returned Wednesday he dined as usual, but soon, com- 
plaining of a pain in his head, took to his bed, and was in 
such violent nausea that Dr. Rush lulled the pain with 

Letter of Judge Smith, dated April 15, 1806, among the Whelen 
Papers. 

" Whelen Papers. 

^ Ibid. 

* Supreme Court Minutes Book, March 29, A. M. 



HIS CI.OSING YEARS 277 

laudanum. He was more quiet Thursday, but early on 
Good Friday morning, while Mrs. Smith was attending 
him, "his spirit left its body," — to quote her own sad mes- 
sage to his aged mother in Scotland, "but," she further 
wrote, "we will not sorrow as those who have no hope." * 
When it became evident that Judge Smith was so ill 
late Thursday the court adjourned until Saturday at 10 
o'clock, and at that time adjourned until the following 
Tuesday. Qiief Justice Tilghman, between whom and 
Judge Smith there had grown up the warmest friendship, 
had been chosen by the latter, together with his old student 
and nephew, Charles Smith, Esq., and the ex-Prothonotary 
of the Supreme Court, Edward Burd, Esq., to join with 
Mrs. Smith as executors of the estate and| guardians of 
his one son and seven daughters. The funeral services 
were held on Sunday, April 2. at Christ Church, where 
Judge Smith had been a member since his residence in 
the city, and occupied the "President's Pew," after the 
removal of the President of the United States to the Fed- 
eral city in 1800, the pew of Dr. Smith, his former pew, 
being directly in front of it.- He was buried on the same 
day in the Christ Church grave-yard, at Fifth and Arch 
streets, near the center of the grounds, just east of the 
main aisle — grounds made famous by the tomb of Frank- 
lin on the one side, and, a little later, Dr. Rush on the 
other, not to speak of many another great name. On the 
top marble of the usual rectangular tomb of that day was 
placed the following inscription: 

1 Letter of Mrs. Letitia Smith to Dr. Peter Smith, Aldie, Scot- 
land, dated July 6, 1809. De Renne Papers. In his will, made ex- 
actly to the day, three years before his death, he showed premonition 
of both the cause and time of his death. "As I * * * * may 
be suddenly called from this state of Being," he says, "especially as 
I have been at times, in the spring and autumn seasons, for some 
years past, afflicted with an alarming headache; and altho' I am 
not so often subject to it since I have resided in the City, as I had 
been for some years before. Yet being frequently attacked by it 
violently on the Circuit in spring and autumn, I deem it a duty," etc. 
The will of Judge Smith is a most able document, and marked by 
the highest and most tender sentiment, gentle dignity and earnest- 
ness. It is also one of his most finished papers. Mrs. Smith died 
on March 8, iSii, at the age of fifty-two, at Charleston, S. C, and 
was buried at the side of her husband. 

"Records of Christ Church. 



278 THOMAS SMITH 

"Thomas Smith 

One of the Judg-es of the Supreme Court 

of Pennsylvania 

rests beneath this marble. 

He sustained various public offices 

with ability and fidelity. 

His integrity was inviolable. 

An affectionate husband and father, 

In his friendships benevolent and sincere, 

He conscientiously discharged his public duties 

until the last day of his life, 

with unremitting industry and zeal, 

and died 31^* March, 1809. 

Aged 64 years." 1 

On the evening of the 31st the first notice of his death 
appeared in The Democratic Press: "Died. — This morning 
Thomas Smith, Esq., late one of the Judges of the Supreme 
Court for the Commonwealth of Pennsylvania." It also 
appeared in other papers as they were issued, and there 
seemed to be an understanding that later on something 
worthy concerning him should be published. When court 
met after April 4, and Justice Yeates attempted to offer 
an opinion, he said : " But my mind is not yet satisfied 
as to the manner of entering judgment on the verdict. 
The late mournful event has put it out of my power to 
examine the law, and consult the entries in such cases, as 
I fully intended; and therefore the cause must be continued 
under advisement."- Later on in the same term, Chief 
Justice Tilghman, in opening the opinion of the court, 
said: "In this cause, as in many others, we feel the loss 
of our brother Smith," and this cause, also, was held under 
advisement.^ A little later, in another case, he said: "But 
although we are without the authority of an adjudged case, 
we have the opinions of Chief Justice Shippen and Judge 
Smith, to which I pay great respect, in the case I have 
mentioned," and the action of the Circuit Court was af- 



^The lettering had long since become so indistinct that recently, 
the summer of 1903, in recutting it, the church-yard register copy of 
it had to be used. 



' I Binney, 574. 
' Ibid., 600. 



Christ Chi rch, Philadelphia 

Showing the Pew occupied by Presidents Washington and Adams, 

and afterwards by Justice Smith. The Pew is double 

one with square plate to left of mirldle aisle 




Tomb of Jisticf: Smith, 

in Christ Church Graveyard, Fifth and Arch Streets, 

Philadelphia 



HIS CLOSING YEARS 279 

firmed.^ When Horace Binney issued his first volume of 
reports, in the preface, written in December, previous to 
Judge Smith's death, after expressing his gratitude to the 
Chief Justice, he said: "The reporter at the same time 
confesses with great sensibihty the courtesy of the Judges 
of the Supreme Court, whose opinions have always been 
at his service to transcribe, and the notes of one of them, 
Mr. Justice Smith, have enabled him more than once to 
supply a chasm, or detect an inaccuracy in his own."^ 
When his nephew, Charles Smith, Esq., who was chosen 
the following year to do the work long since assigned to 
Justice James Wilson, namely, edit the Laws of Pennsyl- 
vania, and wrote that celebrated foot-note of over one 
hundred and fifty pages, which has ever since been the 
classic on land law in Pennsylvania, his references to and 
quotations from the late Justice were frequent and im- 
portant/ Even the late Justice Huston, who pleads to a 
special admiration for Shippen and Yeates, and himself 
had confidence in his own authority in the realm of land 
law, writing, forty years later, on that subject, can find 
but a single instance in which Judge Smith's knowledge 
of the Land Office customs, and that, too, before 1769, 
was at fault, while he gives him a large place in his work 
on that subject.* The best estimate, however, comes from 
the late Chief Justice Sharswood, who said that Judge 
Smith "was regarded as having a larger and more ac- 
curate knowledge of the land law of the State than any of 
his associates on the bench." ^ 

Something over a month after his death a sketch ap- 

^2 Binney, 100. As chief executor, Mr. Tilghman had charge 
of Judge Smith's papers, and, as has been indicated, he prized the 
Judge's notes highly. In 181 1, in an opinion, he mentioned posses- 
sion of the notes: "I find from the manuscript notes of the late 
Judge Smith, which are in my possession, that it was ruled in the 
same way," etc. 4 Binney, 59. The executors offered Judge Smith's 
library for sale on May 15, 1809. 

^ I Binney, IV. 

'2 Smith's Laws, 105, in edition of 1810. 

* Huston on Land Titles in Pennsylvania, 1849, pp. 341, 427, 
466, et al. 

^ This was said in the presence of Simon Gratz, Esq., of Phila- 
delphia, who, in a letter of October 21, 1902, to the author, says : 
"What Judge Sharswood said about Judge Smith was, substantially, 
this : that he was regarded as having a larger & more accurate 
knowledge of the land law of the State than any of his associates 
on the bench. Very Truly Yours, Simon Gratz." 



28o THOMAS SMITH 

peared in the United States Gazette of May ii, which his 
wife, whom he describes in his will as one "who joins the 
vivacity of youth to the wisdom of age, who is religious 
without ostentation, cheerful without levity, and grave 
without morosity," has said was inserted by "one who 
knew him well." It has been thought that it was written 
by Chief Justice Tilghman or Editor Bronson, but the 
manuscript of it — whether copy or original cannot be 
known — which Mrs. Smith sent to his mother in Scotland, 
is in the hand of his nephew and executor, Charles Smith. 
It was evidently her favorite of all that appeared about 
him; "what is said of him," she adds, "is most just. He 
spent a useful & active life — no man more industrious, or 
more studious to acquire useful knowledge & few men had 
acquired so much. As a Judge he was independent and 
correct. He was certainly a great public loss, for no man 
could have been more devoted to the public good, and 
served his Country with more zeal and ability for upwards 
of twenty years." ^ 

"To record the worth and virtues of departed friends," 
reads the sketch, "is a grateful though melancholy duty. 
Among the various biographical sketches which daily meet 
the eye, there can be few, if any, more deserving of notice 
and respect than the following affectionate tribute to the 
memory of the late 

"JUDGE SMITH. 

"This gentleman was a native of North Britain, from 
whence he emigrated in early life to this continent. On 
the 9*^^ of February, 1769, he was appointed Deputy Sur- 
veyor of an extensive frontier district, and established his 
residence at the town of Bedford. In the execution of his 
official duties, he displayed integrity and abilities which 
could not have been exceeded. His fidelity in this im- 
portant and interesting trust was so strongly marked, that 
no individual has been able to complain of injury ; and 
exemption from law suits, and certainty of titles to prop- 
erty, have been almost the invariable result. So high was 
his sense of honor, so inflexible his principles of justice, 
that he would never suffer even suspicion to cast a shade 

^ Letter of Mrs. Thomas Smith to Dr. Peter Smith, July 6, 1809. 



HIS CLOSING YEARS 281 

over his official character. His private interests yielded 
to the firmness of his mind, and although landed property 
was then so easily to be acquired, he scrupulously avoided 
all speculation; determined that the desire of gain should 
neither warp his rectitude, nor give birth to jealousy in 
others. 

"When the county of Bedford was erected, he received 
commissions from the then Proprietaries, to execute the 
offices of Prothonotary, Clerk of the Sessions, Orphans' 
Courts, and Recorder of Deeds for that County: and such 
was the uniform tenor of his conduct as to insure the 
respect, esteem and attachment of all who had any trans- 
actions with him. 

"At the commencement of the late revolution, he zeal- 
ously espoused the cause of his adopted country, and at 
the head of his regiment of militia performed his tour of 
duties in her service; and his attachment to the Liberties 
and Independence of these United States was inviolable. 
By the citizens of his county he was chosen to represent 
them in the Convention which formed the first constitu- 
tion of this commonwealth; but, it is just to add, that 
instrument did not meet his entire approbation. As a 
member of the Legislature, frequently elected, his talents 
were useful, his exertions and industry unremitted; and 
when, towards the close of the revolutionary war, he was 
appointed to represent this State in Congress, he carried 
with him into that body the same invaluable qualities, the 
same firm and inflexible integrity. 

"The law was his profession, and he practiced with in- 
dustry and success; seeking to do justice but abhorring 
iniquity and oppression; never greedy of gain, he was 
moderate in receiving the honorable reward of his profes- 
sional services. He was a father to those who confided in 
him, however poor or afflicted: he delighted to encourage 
merit and virtue wherever he found them; but he exposed 
with severity, violence, fraud and iniquity, whether clothed 
in rags or shrouded behind the mantles of wealth or in- 
fluence. To those who sought it, he gave honest and 
sound advice in questions of Law, according to the best 
of his skill and judgment: he discouraged law suits and 
scorned to foment litigation for the sake of gain. He 
may have frequently erred, more frequently have been de- 



282 THOMAS SMITH 

ceived by statements imposed upon him by clients, but he 
never knowingly recommended the prosecution of an un- 
just cause. 

"When the judiciary department, under the present 
constitution of Pennsylvania, was organized, he was ap- 
pointed President of the district composed of the counties 
of Cumberland, Mifflin, Huntingdon, Bedford and Frank- 
lin, in which ofhce he continued until, upon the resignation 
of Mr. Bradford, he was appointed a Judge of the Supreme 
Court of Pennsylvania. The arduous duties of both those 
stations he performed with skill and integrity. He spared 
not himself in sickness or in health— he shrunk from no 
labour or fatigue. Although his constitution was wearing 
away, his high sense of duty foreclosed from his view ap- 
proaching danger, or, tho' he beheld it, it appeared to 
him trivial in comparison with what he considered the 
obligations of conscience. He never tasted the bread of 
idleness ; nor would he have touched the emoluments of 
ofifice, if unable to perform its duties. But he sunk under 
this too zealous attention to rigid duty, at an age not 
greatly advanced; and when, by a little indulgence and 
self-denial (most surely justifiable) he might yet have been 
spared to his afflicted family. 

"The expressions of his features were apparently 
austere: his outward manners were not marked with 
grace or softness. In conversation, his sentiments were 
delivered with blunt sincerity, and were sometimes sup- 
posed, by those who knew him not, to designate the char- 
acter of harshness, but his heart was replete with the 
finest qualities which could adorn it — humane, benevolent, 
and just — in his friendships ardent and sincere, and his 
acts of friendship executed with peculiar delicacy and 
grace. In all his dealings he was scrupulously exact, and 
there exists no man who can truly say he has received 
from him an injury. Those who knew him well will not 
hesitate to acknowledge the correctness of this brief eulo- 
gium on departed worth. 

"To his family his loss is irreparable. As a husband 
and father he was affectionate, mild, indulgent — the hap- 
piness of his family was the great object of his life. Domes- 
tic harmony reigned in his household. His mansion was 
the abode of hospitality. Long, very long, will his loss 



HIS CLOSING YEARS 283 

be mourned. The memory of his virtues will remain as 
their sweetest consolation; but the deep felt sorrow of 
his afflicted widow and children can not recall the hus- 
band, father and friend."^ 

For four years past there had been a constant and 
thorough reorganization of the judiciary system of Penn- 
sylvania to relieve the Supreme Court and meet the needs 
of a rapidly growing State.- Finally, just twenty days 
before Judge Smith's death, the Circuit Courts were abol- 
ished, and the Supreme Court was to hold sessions at Phila- 
delphia, Lancaster, Sunbury, Chambersburg and Pittsburg. 
With this and other forms of relief, it was deemed that so 
large a court w^ould not be necessary. In consequence, it 
was provided that the next vacancy on the Supreme Bench 
should not be filled, that there should then be but three 
Justices.^ Judges Smith and Yeates were of the same 
age, seniors on the bench, and both were subject to serious 
attacks of ill health. It was Judge Smith, however, who 
was the first to go — and, for seventeen years, he had no 
successor. 

Some men there are so strong in moral character and 
so broadly and soundly appreciative in every situation in 
life, that, while they may not be men of initiative them- 
selves, are a tower of strength to leaders who are. Such 
leaders it is, too, who, more than any one else, seem to 



^From the copy in the handwriting of the late Judge Charles 
Smith, among the De Renne Papers. This was republished m The 
Portfolio, Vol. II, p. 79, and elsewhere. 

^The following letters will show that the spirit of reorganiza- 
tion did not cease in 1809. On January 15, 1810, Chief Justice 
Tilghman wrote, thanking Judge Yeates for news of legislation on 
the judiciary at Lancaster, which was the capital until 1812. He 
added: "If they will but let us alone. I shall be satisfied." On Octo- 
ber 10, of the same year, Edward Tilghman wrote Yeates: Can 
you lay your hands on a sketch I formerly sent you of a scheme for 
a strong Court of Common Pleas for Philadelphia county to be 
composed of three law Judges— before whom, or one of them^ al_l 
suits in that county should be tried, so as to make you of the b. L. 
a court of error only? If you can, be good enough to send it to me 
by a good private opportunity. If you recollect what you did with 
it (you having it not) be pleased to say. I am assured that great 
interest will be made for the adoption of a plan of the sort 1 
think it must be attended with a raising of the salaries of the Judges 
of S. C." Whelen Papers. t j tj 

' 5 Smith's Laws, 17. It will be recalled that Judge Bryan was 
the first "Fourth Judge" under the Commonwealth, so that Avhile it 
came in with Judge Bryan, it went out with his old antagonist. 



284 THOMAS SMITH 

understand and need them ; and it is largely through these 
leaders that they exert their chief influence on their times. 
Clean, wise, sagacious, and of a constructive spirit, is the 
man who can take part in the vital movements of a stormy 
and transitional time and come through it beloved by the 
best. And after all — are not these our really constructive 
forces? That it was these elements in Washington which 
Judge Smith so passionately loved there can scarcely be 
a doubt ; that these were the ones he wished to possess 
has been seen in his own words. It is a great thing to 
be, in all relations of life, merely a just judge. 



INDEX 



Index 



Aberdeen, 2; 3; 4. 

Aberdeen, University of, rec- 
ords, 3. 

Adams, John, on the work of 
Congress, 134; 247. 

Adams, Samuel, 137. 

Addison, Alexander, 5; sketch 
of, by Judge Smith, 209; 
portrait of, 222; 239; 242; 
252; impeachment of, 254. 

Aldie, 3. 

Allen, Andrew, 57; 229. 

Allison, John, loi. 

America, account of part of, 
by Major Robert Rogers, 
21-22. 

American Philosophical So- 
ciety, The, 30. 

Aristocratic Party, The, 192, 
(see Constitutionalists — 
Anti-). 

Armstrong, Judge James, 215, 
estimate of by Judge Smith, 
221. 

Armstrong, John, 29; 38. 

Arnold, treason of, 130. 

Assembly, The, membership 
in 1756, 13-14; 23; 28; 30; 59, 
60; reply of to Gov. Penn, 
61; letter to, 63-4-5; in- 
creased representation in, to 
replace, 66; permits vote for 
Independence by Congres- 
sional delegates, ^T, 68; 70; 
last meeting of, 83; new, 86; 
friends of new Constitution 
in control of. 86; alarmed, 
87; elects President. 87; sends 
copies of Constitution to 
Bedford county, 89; pro- 
poses novel balloting meth- 
od, 92; at Lancaster, 93; of 
new political complexion, 
lOi; oath modified by, loi; 
members who took such 
oath, loi; organized by 
Constitutionalists, 102; first 
division, 102; protests 
against action of. 103; re- 
sentment of. 105; contest 



over conditions of member- 
ship, 106; more protests 
against the Assembly, ac- 
tion of, 106; (see Smith, 
Thomas, Jr.) ; new members 
of, 130; reelects delegates to 
Congress, 144; new one, 153; 
struggle in, over Federal 
Constitution, 192-3; votes 
for ratifying convention, 
193; takes oath of allegiance 
to Federal Constitution, 202. 

Associators, non-, 72; 80; 86. 

Associators, The, approved, 
61; 65: 86. 

Atlee, Samuel J., 130; 133; 
137; 138; 140; 143; 144; 153- 

Atlee, William (Augustus), 
59; member of the Supreme 
Court, 126; 179; 197-8: 200; 
204; 209-10; portrait of, 222. 

Bache, Richard, in. 

Bank, of Pennsylvania, 129; of 
North America, 139; of 
Pennsylvania, 139; of North 
America, 147; 154. 

Barge, Joseph, 66. 

Bayard, Col. John, 84; 86; 87; 
102; 104; 123. 

Beale, Judge Thomas, 216. 

Bedford, 22; Duke of, 38; his- 
tory of, 38: county organi- 
zation, 39-40; county jus- 
tices. 46; Court House. 48; 
loan to, 59. 60; Committee 
of Correspondence of, 61; 
letters from, needs of, 63- 
4-5; receives £200; increased 
representation for, 66; dele- 
gation of to the State Con- 
stitutional Convention of 
1776, 71; Assembly mem- 
bers, 86; contest in, copies 
of Constitution sent to, 89; 
letter concerning, from Gal- 
braith, 93-4; conditions in, 
94-5-6; 97; 98: 99-100; law- 
yers customs in, 98; magis- 
trates of, 99; delegation 
solidly Anti-Constitutional- 



287 



288 



INDSX 



ist, 101-2; desires sale of 
Court House, 105; 106; af- 
fairs of, in Assembly, 113; 
militia, 115; first lawyers of, 
160-1; Judge Smith's first 
court at, 212. 

Berwick, James, 43. 

Biddle, Edward, 101; no. 

Biddle, James, 204; 209; por- 
trait of, 222; 229; 242. 

Biddle, John, 35. 

Biddle, Owen, 71. 

Bingham, William, 168; 231. 

Binney, Horace, 273. 

Bird, Mark, loi. 

Blaine, Ephraim, 90; no; 133. 

"Bloodybones, Mr.," 153-4- 

Blue Laws, of 1794, 252. 

Bond, 6. 

Boswell (see Johnson, Dr. 
Samuel), 2; 265. 

Bouquet, Col. Henry, expedi- 
tion by, 15. 

Boyd, Lord, 6. 

Brackenridge, Hugh Henry, 
5; in college, 23; 174; be- 
comes Justice of the Su- 
preme Court, sketch of, 
252-3; portrait of, 252; in- 
cident related of, 253-4; and 
the impeachment of Addi- 
son, 254; writes a letter on 
the impeachment of the Su- 
preme Court, 255-6; 269. 

Bradford, William, Jr., 126; 
149; 205; 208; 209; portrait 
of, 222: sketch of, 226, 230. 

Breck, Samuel, quoted, 132. 

Brent, George, 43. 

Broadhead, Daniel, 59; 113; 

115- 
Bryan, George, port officer, 
67; political leader, sketch 
of, 73-4; portrait of, 74; pa- 
pers of, 74; considered chief 
author of the Constitution 
of 1776, '/6; expressions con- 
cerning, by Graydon, 76-7; 
Vice-President of Pennsyl- 
vania, 87; influence of, 88; 
becomes acting President 
by death of Wharton, 100 ; 
again Vice-President, 103; 
author of Abolition Act. 
105; characteristics as a 
writer, in; estimate of work 
of, 112; heads Virginia 
boundary commission, 113; 



refers to Col. Smith, 113; 
plans to enter the Assembly, 
close of Council service and 
reasons for, 122; resignation 
as Vice-President and Coun- 
cillor, 123; elected to the 
Assembly, leader of, 123; 
chairman of twenty-seven 
committees, remarkable 
power of, 123-4; results of 
leadership of, in Assembly, 
124; principles of organiza- 
tion of, 125; influence of, on 
the State government, 125; 
and the Slavery Abolition 
Act, letter of to Samuel 
Adams, additional compen- 
sation to voted, 125; chosen 
fourth Justice of the Su- 
preme Court, 126; ex-ofificio 
member of the High Court 
of Errors, 126; results of 
judicial elevation of, 126; 
successor of, 129; probable 
reference to, 158; 171; rank 
of, in court, 179; leader of 
the Anti-Federal Constitu- 
tionalists, comments by, 192; 
papers of, 192; as " Centi- 
nel," 193; leads opposition 
to Federal Constitution, 
194; devotion of, to old Con- 
stitution of 1776, 194-5; let- 
ters of, on ratification, etc., 
195-6-7-8-9; on the Carlisle 
riots, 197; satirized by Judge 
Hopkinson,and called "mid- 
wife" of Constitution of 
1776, 199; cartoon of,_by 
Hopkinson, 200;^ not in cele- 
bration of Federal Constitu- 
tion's adoption, 200; heads 
Harrisburg convention and 
probably proposed many of 
our present amendments, 
200; commission of con- 
tinued in force, among 
others, by Governor Mifflin, 
203; death of, 203; eulogy 
on, 203-4; tribute to by A. J. 
Dallas, 204; home of, 231; 
283. 

Bryan Papers, 192. 

Bryson, Judge Samuel, 215-16. 

Buchan, Earl of, 5. 

Bull, Col. John, 71; 72. 

Burd, Edward, 232; 237; 
quoted, 267; 277. 



INDEX 



289 



Burd, Col. James, 38. 
Burd, John, 102. 

Cadwalader, no. 

Cadwalader, widow of Gen- 
eral, 6. 

Cannon, James, member Con- 
stitutional C,o n V e n t i o n, 
sketch of, 72; one of added 
members of Committee on 
Constitution, ^y, a radical 
leader, 74; considered co- 
author of Constitution of 
1776, 76; 77; 82; 8a; 85; 87. 

Canute, King, 4. 

Capital, of United States, es- 
tablished, 202. 

Carlisle, 21; history of, 166-7; 
view of Court House, 166; 
riots at, 196-7-8-9; (see 
Preface); Gazette, igj; large 
business of courts at, 210; 
first court of Judge Smith 
at, 213-14; admissions at 
court at, 214. 

Cassandra Letters, author of 
72. 

Censors, Council of, 85; 103. 
106; 171; 200-1. 

"Centinel" (see Bryan, 
George), 193; 195. 

Chambersburg, courts and 
records at (see an earlier 
page for this), 212; 216. 

Charles, Prince, i; 5. 

Charnock, Agnes, 3. 

Chew, Benjamin. 24; 46; Pres- 
ident of the High Court of 
Errors and Appeals, por- 
trait of, 222; 225-6; 231; 242; 
246-7; 260-1; 275. 

Christ Church, rector of, 24. 

Clarendon, Sir Roger, 3. 

Clarke, John, Deputy Attor- 
ney-General, 215-16. 

Cluggage, Robert, 40. 

Clymer, George, 59; 67; dele- 
gate to Congress, 72; 86 
loi; 106; no; 112; 133; 137 
139; 140; 142; 143; 152; 153 
192. 

College of Philadelphia, 6; 
Provost of, 7; mathematical 
course in, 8; Assembly 
meets in, loi; attack on, 
107; case of, before the As- 
sembly, 1 18-19; trustees of, 
119; charter of, annulled, 



124; restored, 170; law lec- 
tures begun, 203. 

Colonies (see America). 

Committee of Safety, Provin- 
cial, 61. 

Confederation proposed, 78; 
Articles of in preparation, 
93; articles of submitted, 
100; weakness of, 132; 134; 
articles of signed by last 
necessary State, Maryland, 
135; completion of cele- 
brated, 136-7; some mem- 
bers present at same, 137. 

Conference, Provincial (see 
Convention), 68; 70. 

Congress, Continental, pro- 
posed, 59; Pennsylvania 
delegates to, instructions, 
59; Continental, meeting of, 
60; delegates to from Penn- 
sylvania, 61; proposes new 
State governments, 67; 70; 
71; delegates to from Penn- 
sylvania, 72; 81; moves to 
Baltimore, 86; Pennsylvania 
delegates to, 87; removes to 
Lancaster^ 92; locates at 
York, 93; again at Philadel- 
phia, 100; 117; 118; new 
Pennsylvania delegates to, 
130; the same, instructions 
to, 130-1; 133; John Adams 
on work of, 134; to be given 
tariff powers, 134; a secret 
body, votes made public, 
137; establishes Bank of 
North America, 139; Mc- 
Kean made President of, 
141; President of, resigns 
because he is Chief Justice 
of a State, 143; celebrates 
surrender of Cornwallis, 143: 
Pennsylvania delegates to 
reelected, 144; receives Gen. 
Washington, 145-6; 190-I. 

Connecticut, Governor of and 
claims, 56; 131; 133; and 
tarifif, 138; claims, hearing 
set, 144; 149-50; 152; ex- 
change, 236. 
Conolly, Dr. John, Virginia 
Commandant, announcement 
of, 51; arrested and released, 
52; aggressiveness, 52-3-4; 
57-8; 60. 
Constitutionalists, organize 
the Assembly, 102; Whig 



29Q 



INDEX 



Society, no; reply of, by 
Matlack, no; organize party 
as Constitutional Society, 
III; manifesto by, in; esti- 
mate of, 111-12; small ma- 
jority of in the Assembly, 
122; campaign of, 122-3; 
comfortable majority of, 
124; lose power, 153; change 
of name of, 192; struggle of 
in the Assembly, 193; (see 
Federalists and Federalists, 
Anti-), 195-6. 
Constitutionalists, Anti-, vote 
more freely, 100; leaders of, 
102; 106; 108; as the "Re- 
publican Society," manifesto 
of, no; some members of 
the, no; become strict con- 
structionists, dissent, 112; 
(see Smith, Thomas, Jr.); 
on the finances, 129; in the 
Assembly, 130; 134; 153; 
154; 190; change of name of, 
192; struggle of in Assembly, 
193; 194; (see Federalists, 
Anti-), 195. 
Constitution, Federal, 190; 
convention for called, 191; 
reception of, in Pennsylva- 
nia, 192; struggle over in 
Assembly, 193; amendments 
to, offered, 194; ratified by 
Pennsylvania, 194; how re- 
ceived in various States and 
counties, as described by 
Judge Bryan. 195-6-7-8-9; 
adopted, 200; celebration of, 
in Philadelphia, 200; amend- 
ments proposed at Harris- 
burg convention, headed by 
Judge Bryan. 200. 
Constitution of 1776, conven- 
tion for called, 68; (see Con- 
V e n t i o n. Constitutional), 
76-7; preparation of oaths 
and preamble for, 83; fac- 
simile of pages of, 84; pub- 
lic objections to, 84-5; re- 
sistance advised, 84; defense 
of, 85-6; government under 
established, 87; copies of 
sent to Bedford, 89; propo- 
sition regarding, by "Demo- 
philus," 89-90; 97; in Bed- 
ford, 98; (see Constitution- 
alists, Constitutionalists, 
Anti-); oath provided by, 



modified, loi; changes pro- 
posed, 103; objections to, 
106-7; results of contest 
over, 107; St. Clair on, 109; 
comments on, no; in sym- 
bolic picture, no; question 
on, in the Assembly, 112; 
again in Assembly, 118-19; 
Morris' opposition to, 120; 
influence of Fort Wilson 
riot on, 120; 190; 192; 194-5; 
revision of, how prevented, 
195; Bryan called "the mid- 
wife" of, 199; revision of 
discussed, 200-1; contest 
over practically settled by 
oath of Federal allegiance, 
202. 
Constitution of 1790, proposed 
and called "The New Roof," 
199; convention for called, 
201-2; opposition to, in 
Cumberland county, 202; 
convention for Federalist, 
202; some members of same, 
202; adopted, 202; certain 
provisions of, 204; clamor 
for revision of, 257-8. 
Convention, Constitutional, 68; 
Committee of, 71-2; Com- 
mittee on Constitution in- 
creased, "JZ'^ decides on 
single branch legislature, 74; 
description of its work, 74- 
5-6; proposes a confedera- 
tion, 78; comments on, 79- 
80; committee on ordinance 
for elections, in, 83; su- 
preme, 83; rises, 83; provi- 
sion for new, 92; qualified 
oath to permit working for 
new, loi ; committee of As- 
sembly on, 102; meeting 
place, 102; points for, to 
consider, 102-3; protests 
against, 103-4; Assembly 
contest over, members ob- 
jecting to repeal of call for, 
and objections of, 106-7; 
ratifying, 193; (see Consti- 
tution of 1790), 201. 
Convention, Provincial, 59; 
second, 60; (see Conference 
also), 68; (see Constitution; 
Convention, Constitutional; 
etc.). 
Cornstalk, Chief, 58. 
Cornwallis, Lord, 143. 



INDEX 



291 



Council of Censors (see Cen- 
sors, Council of). 

Council of Safety, 87. 

Council, The Supreme Execu- 
tive, 90. 

Counties (see Pennsylvania). 

Court of Errors and Appeals, 
The High, proposed, 104, 
122; 124-5; constitution and 
members of, 126; two 
members of, 130; remod- 
elled, 205; as constituted in 
1791, 222-3; portraits ol 
members of, 222; case in, 
and opinion in,^ by Judge 
Smith, 224-5; character of, 
226; lawyers of, 238; in July, 
1796, 242; 245; 248; to be 
abolished, 258; Judge Smith 
presides in, 260; last session 
of, 275. 

Court, The Supreme, members 
of in 1768, 24; Nisi Prius, 
24; old room, 70; fourth 
Justice to, chosen, 126; cool- 
ness between Justices of, 
rank of Justices of, 179; de- 
scribed by Rev. Cutler, 191; 
hall of, 201 ; members to 
serve during good behavior, 
204; room of, 223; also, 228; 
portraits of members of in 
1794, 230: salary of Justices 
of, 233; libraries of Justices 
of, 235; reports of, 235; news 
of, 237; badinage between 
Justices of, 243; news _ of, 
245-6; promotion of Justices 
of, 252; territory represented 
in, 252; the Passmore case 
in, 255-6; impeachment pro- 
ceedings against, 255-6-7; 
Burd on the appointment of 
a new Chief Justice in 1806, 
267; reasons for choice of 
William Tilghman as Chief 
Justice of, 267-8: reorgani- 
zation of, reduction of num- 
ber of Justices to three, 283; 
the "Fourth Judge" of, 283. 
Court, of the United States, 

The Supreme, 204; 236. 
Courts, District, customs in, 

213-14. 
Courts, Nisi Prius. 24: records 
of, 49; history of, 164-5; Cir- 
cuit, 164; Nisi Prius, records 
of, 165. 



Crawford, Col. William (see 
Virginia), 174-5; 180. 

Croghan, George, and Indian 
purchase, 24; sells Standing 
Stone tract to Dr. Smith, 
27; sympathy with Virginia, 
52; land owned, 52; 58; 63; 
149. 

Crojer Dane or Kill Dane 
(see Cruden). 

Cruden, 3; 4. 

Culloden, Battle of, i; 4. 

Cumberland county, politics 
of, 190; riots in, 197-8-9; 
opposes new State Consti- 
tution. 202. 

Currency (see Finances). 

Dallas, A. J., quoted, 204; 230; 

247; 257. 
Davidson, Hugh, letter from. 

97; 102. 
Davidson, Samuel, 40; 61; 99. 
Davis, Col. John, 113. 
Declaration of Independence, 

71 ; ratified by Pennsylvania, 

7Z. 
Delaney, Sharp, 233. 
Democrats, or Republicans, 

in 1799, 251; 268. 
De Renne, George Wymberly 

Jones, 3; and family, 166; 

263. 
De Renne Papers, '\. 
De Renne, W. J., ^166. 
Dickinson College, 167-8; 

trustees of, 168; letter of 

Thomas Smith concerning, 

168. 
Dickinson, John, "Farmer's 

Letter," 23: poem to, 24; 30; 

59; 60; 66; 67; 86; 153; 167. 
Doughert3% Bernard, 38; 39; 

40; 46; 60: 86; 102: 106. 
Duncan (Camperdown) Eliza- 
beth, 3. 
Duncan, Stephen, loi. 
Duncan. Justice Thomas, 41; 

large practice of, 214; 216. 
Dunlap, James, loi. 
Dunmore, Lord, 51-2-3-4-5-6- 

7-8-9-60. 
Duponceau, Peter S., 230; 234. 

Edward, the Black Prince, 3. 
Elder, Joshua, 35; 2,7. 
England, her Power and Pos- 
sessions in 1763, 12; right to 



292 



INDEX 



tax in India and America, i6. 

English Statutes, Judge's re- 
port on, in force in Pennsyl- 
vania, 273. 

Erroll, Countess of, 2; 4; S; 6; 
265. 

Erroll, Earl of, 2; 265. 

Erskine, Lord Thomas, S; 6. 

Espy, David, 43; 46; 61; 86; 
c^; succeeds Galbraith, 102. 

Evans, John, Justice, 126; 179. 

Ewing, Rev. John, 30; 113; 
170. 

Farmer, A (see Dickinson, 
John). 

"Federalist," 193. 

Federalists or . Federal Party 
(see Constitutionalists — 
Anti-, after change of name 
to Constitutionalists), 194; 
called "conspirators,'' by 
Judge Bryan, 196-7-8; pro- 
gram uninterrupted, 200; 
202; 251. 

Federalists, Anti-(see Consti- 
tutionalists, after change of 
name to Anti-Constitution- 
alists), 194; called Anti-Con- 
stitutionalists, 195. 

Finances, 109; 120; leaders to 
get together on, 129; 130; 
131; policy of, record of, 132- 
3; 134-S; department of, and 
Superintendent of voted, 
135; days for consideration 
of, 137; 138; and the organi- 
zation of the Bank of North 
America, 139; same pro- 
posed to be a monopoly, 
140; 144; 191. 

Fisher, Miers, 231. 

Fitzsimmons, Thomas, 153; 192. 

Floyd, William, proposes 
Morris as Superintendent ot 
Finance, 135. 

Forbes, General John, expedi- 
tion by, 15; road, 22; 38. 

Foreign AflFairs, Department 
of, created, 133-4. 

Fort Du Quesne (see Fort 
Pitt). 

Fort Pitt (Fort Du Quesne), 
IS; 21; 23; 54; 55; 57; 59; 60; 
62. 

Fort Stanwix (see Treaty). 

Fort Wilson Riot, The, 119; 
(see Wilson, James). 



Franklin, Benjamin , 24; 30; 
letter from, 61; President of 
Committee of Safety, 61; re- 
quest of, 61; President of 
Constitutional Convention, 
71; delegate to Congress, 
^2; y2,\ relation to Constitu- 
tion of 1776, y6; 86; 87; re- 
lation to Constitution of 
1776, no; engraving con- 
cerning, no: 192; death of, 
202. 

Franks, David, 41. 

French Benevolent Society, 
234- 

Freneau, 253. 

Funk, George, 61; 99. 

Galbraith, Bartram, 29; jt,. 

Galbraith, Robert, 38; 40; 43; 
46; 89; succeeds Smith, 90; 
letter from, 93-4; letter from, 
96-7; letter from, 98-9-100; 
resigns, is rebuked, 102. 

Galloway, Joseph, Speaker. 23; 
59- ' 

George III, 17. 

Georgia, deserts single-branch 
legislature, 202. 

German Incorporated Society, 
234- 

Great Britain (see England), 
predicted decline of, 80: ex- 
pressions of Judge Smith on, 
240. 

Grier, David, 43. 

Hamilton, 31; Andrew, 41; 
Governor, 50; Alexander, 
190; Alexander, 231; also 
252. 

Hancock, 196. 

Hanna, Robert, 40; his house 
a court house, 45; influence 
on Virginia claims, 51; 53. 

Harrisburg, capital, 251. 

Hartley, Thomas, 168; 187. 

Hartz, John, 29. 

Hendricks, James, 36; 27- 

Henry, Judge William, 242? 

^43- 
Hibernian Society, 234. 
Hockley, 31. 
Hoge, Jonathan. 72. 
Hooper, Mr., 62-2. 
Hopkinson, Francis, no; 126; 

130; satirizes Bryan, 199; 

cartoon by, of Bryan, 200. 



INDEX 



293 



Howe, General, 91. 
Hunter, Ephraim, 56. 
Huntingdon (see Standing 

Stone), early courts at, 211; 

attorneys at, 212. 
Huston, Justice Charles, 

quoted, 9; 47; quoted, 219- 

20; 279. 
Hutchinson, Dr. James, 129. 

Impeachments, of Addison, 
254; of the Supreme Court, 
255-6-7; lawyers refuse to 
take part in, 256; Rodney, of 
Delaware, counsel, 257; 
trial at Lancaster, 257; ac- 
quittal, 257. 

Indians, in Pennsylvania, 15; 
lands bought in 1768, 23; 
same described, 28-9; diffi- 
culties with, 58; peace, 60; 
81; (see War). 

IngersoU, Jared, 192; 209; 231; 
245; 257. 

Jacobs, John, 71; 83. 

Johnson, Dr. Samuel (see 
Boswell), 2; 4; 265. 

Johnson, Sir William, letter to 
as Superintendent of Indian 
Afifairs, 18; Indian purchase, 
24. 

Jones, Capt. John Paul, 135-6. 

Jones, Noble Wymberly, 142; 
and descendants, 166. 

Jordan, Justice, of Cumberland 
county, 197. 

Judicial Districts of Pennsyl- 
vania, 204; created and de- 
scribed, 205; map of, 206; 
population of, 211; increased 
to ten, 258. 

Judiciary, 106; (see court, 
courts, etc.) ; source of con- 
test over, in Pennsylvania, 
204; all Federalist, 252; at- 
tacks on, 254-5; reorganiza- 
tion of, 257-8; final reorgani- 
zation of, and reduction of 
Supreme Court Justices to 
three in future, 283. 

Juniata (see Standing Stone). 

Kilmarnock, Lord, 6. 
Kinsey, John, 68. 

Labor, in Philadelphia, in 
1794, 232. 



Lancaster, capital, 251. 

Land Law, how learned, 47. 

Lands, Public, 131; 135; claims 
to by land companies, 143; 
148-9; 152:3-. 

Law Association, library of, 
235; (see Library, Law). 

Lawrence, Mrs. Elizabeth (see 
Smith, Mrs. Elizabeth 2), i. 

Legislature (see Assembly). 

Lewis, William, 206; 207; 208; 
229; 231. 

Lewistown, riots at court at, 
215-16; view of first court 
house at, 216; attorneys at, 
216. 

Library, Law, 228; 235; (see 
Law Association); Philadel- 
phia, 265. 

Lieutenants, County, in As- 
sembly, 112. 

Lightfoot, Thomas, 29; Ben- 
jamin, 2>1- 

Little, John, 41. 

Lloyd, David, 68. 

Locheny, William, 40. 

Lollar, Mr., 117. 

Lowrey, Alexander, 72. 

Lukens, Charles, 27; 30; 36; 
Jesse, ZT- 

Lukens, John, 24; relation 
with Thomas Smith, 26; his 
and Charles' names on 
Standing Stone, 27; sketch 
of, 27; his and others' depu- 
ties, 29; 30; 31; 34; 2>i; 2>T, 
38. 

Maclay, William, 30; 36; 2,7- 

Madison, James, 137; 140; 194. 

Magaw, Robert, 40; 43; 46; 
229. 

Malcolm, King II, 4. 

Maps, of Cruden and vicinity, 
4; of Pennsylvania in 1755, 
14; of same in 1768, 20; of 
Indian purchases in, 28; of 
Smith's surveyors' districts, 
32; of Pennsylvania in 1770, 
38; showing Bedford county, 
40; showing Westmoreland 
county, 46; Virginia claims, 
50; Hooper's mentioned, 62, 

Martin, Col., 1 15-16. 

Maryland, signs Articles of 
Confederation, 135. 

Mason and Dixon Line, yj'^ 
55. 



294 



INDEX 



Matlack, Col. Timothy, 71; 72; 
IZ; 83; 86; 87; reply by, no. 

McCleans, The, William, Mat- 
thew and Archibald, 30; 2i^\ 
Z7- 

McConnell, William, 40. 

McCrea, Robert, 36. 

McFarland, Colonel, 216. 

McKean, Thomas, 68; 71; 104; 
106; 126; 135; 137; elected 
President of Congress, 141; 
143; 179; 197-8; 200; 202; 
portrait of, 222; also 230 ; 
231; 234; 242; becomes Gov- 
ernor, 251; and the Bracken- 
ridge impeachment letter, 
256; 267; 275. 

McKee, Alexander, 58. 

McKinney, 2)T- 

McRea, 38. 

Mease, Dr. James. 231. 

Medical Schools, of Philadel- 
phia. 239. 

Meredith, Samuel, loi; 106; 
no; 112. 

Mififlin, Thomas. 30; 59; loi; 
106; no; and Fort Wilson 
Riot, 120; 130; 153; 192; 
elected State President, 200; 
202; proclaims all commis- 
sions in force, 203; 209; 220; 
231; amusing peculiarity of, 
244: 252. 

Miles, Samuel, no; 222. 

Money, paper (see Finances). 

Montesquieu, 85. 

Montgomery, Joseph, 130; 
sketch of, 133; 140; 143; 144; 
153; John. 153. 

Moore, William, 87. 

Morgan, Jacob, 72. 

Morris, Gouverneur, 192. 

Morris, Robert, 67; delegate 
to Congress, 72; 86; 87; loi; 
102; 106; no; and Fort Wil- 
son Riot. 120; sentiment of, 
on the Constitution, 120; 
129; 130; financial policy of, 
132; elected Superintendent 
of Finance, 135; accepts, 
138; 142; 152; 192; 231; 234. 

Morton, 59; John, becomes 
speaker, 66; 67; member of 
Congress, 72. 

Muhlenberg, Rev. Dr. Henry 
E., 168. 

Muhlenberg, Frederick Au- 



gustus, made speaker, 130; 
234- 

Nathan Ben Saddi, chronicles 
of, 13. 

Nisbet. Rev. Dr. Charles, 168; 
Dr. Rush on, 169-70. 

Nixon, John, 139. 

Northumberland county, or- 
ganized, 44; loan to, 59. 

Oath, modified, loi; (see Con- 
stitution of 1776); taken by 
whom, loi; 102; additional 
vote on, 112; 117. 

Oellers, James, 2.2,2,- 

Ohio Valley (see America). 

Oswald and his Gazetteer, 199. 

Paine, Thomas, clerk of the 
Assembly, 123. 

Parvin, Benjamin, 29. 

Passmore Case, The, 255-6. 

Peale, Charles Wilson, in; a 
leader in the Assembly, 123; 
124. 

Pearson, Isaac, 67. 

Pendergrass, Garrett, 38. 

Pendleton, Phillip, 40. 

Penn, Governor John, and In- 
dian purchase of 1768, 23; 
28; 31; 55; 60-1; 83; \\T. 

Pennsylvania, inhabitants in 
1755, 13; map of, by Lewis 
Evans, 1755, 14; Indians in, 
15; most flourishing colony, 
17; Indian purchase of in 
1749; counties organized in 
by 1766, 19; map of, 20; ac- 
count of in 1765 by Major 
Robert Rogers, 19-20-21; 
Indian purchase of, 1768, 23; 
boundary, 23; agent of, 24; 
surveyors of, 29-30; map of 
in 1770, 37-8; Bedford coun- 
ty organized in, 39; North- 
umberland county organized, 
44; Westmoreland county 
organized in, 45; and Vir- 
ginia claims, 50; 58; people 
of asked to appoint Com- 
mittee of Correspondence, 
59; Provincial Convention, 
59; delegates to Congress, 
59; hostilities by Virginia, 
59-60; policy of, 60; second 
convention of, 60; first to 
receive overture from Eng- 



INDEX 



295 



land, 61; delegates of, 61; 
associators of approved, 61; 
(see Assembly also), 65-6; 
practically solid for Inde- 
pendence, 68; (see Conven- 
tion; Conference; Conven- 
tion, Constitutional; War- 
fare, etc.); growth of liberty 
in, 68; rising popular party 
in, 72', first President and 
Vice-President elected, 87; 
political situation in, 91 ; 
capital of removed to Lan- 
caster, 92; Reed, et al. suc- 
ceed Wilson, et ah for. in 
Congress, 92; conditions in 
west part of, 100; two events 
in, 100; number of petition- 
ers in, 107; disaffection in, 
107; army of, disaffected, 
108-9; political situation in, 
no; Bank of, 129; delegates 
of to Congress, 130; the 
same, instructions to, 130-1, 
and Connecticut claims on, 
130; reelects delegates to 
Congress, 144; and Connect- 
icut claims, 149-5°; 152; 
change of politics in, 153; 
politics in commented on, 
156; history of courts of, 
164-S; Federal Constitution, 
how received in, 191; mem- 
bers of Federal Convention, 
192; ratifies Federal Consti- 
tution, 194; popular recep- 
tion in ratification by vari- 
ous counties in (see Bryan, 
George, letter of), 197-8-9; 
(see Preface also); cele- 
brates adoption of Federal 
Constitution, 200; Guberna- 
torial campaign in, 202; law 
of, divergence from English 
law, 241-2; a wave of dem- 
ocracy in, 251; capital 
changed, 251; feeling in over 
judiciary, 252; attacks on 
judiciary in, 254; political 
excitement in, 257-8; reor- 
ganization of judiciary in, 
257-8. 
Penn, Thomas, 30- 
Pentecost, Dorsey, 40; 53- 
Peterhead, 4. 
Peters, Dr., 24; i53; 229. 
Philadelphia, 20; 58: Commit- 
tee of Correspondence at, 



59; 68; 70; 86; captured, 92; 
St. Clair on loss of, 93; 
evacuation of by British, 
again seat of government, 
100; 106; "gentlemen mobs" 
in, 198; wishes to become 
the Federal capital, 201; 
State and court houses of 
described, 201; becomes na- 
tional capital, 202; homes of 
some prominent residents 
of in 1794, 231; labor and 
prices in, in 1794, 232; mar- 
keting in. in 1794, 233; so- 
cieties and libraries in, in 
1794, 234-5; and Market 
street residents, 246; yellow 
fever in, in 1797, 247; library, 
265; and the Chief Justice- 
ship in 1806, 268; Democracy 
of, and Governor McKean, 
269. 

Philosophical Society, Ameri- 
can, address before, 132. 

Piper, Col. John, 67. 

Post Office, Department of, 
established, 143. 

Potter, Col. James, 72; Tz\ 82. 

Potts, Jonathan, loi. 

"President's Pew," "The," 
2-]-]. 

Proctor, William, 39; 40; 99- 

Public Service, 131-2. 

Randolph. Edmund, 231. 
Rawle, William, 247; 256. 
Ray (see McRea). 
Rebellion of I745 (see Charles, 

Prince). 
Reed, Joseph. 59; 66; 67; new 
popularity of, 100; loi; 
chosen President, 103; 104; 
109; 120; 126; 129; 149; 153- 
4; 229; 246. 
Republicans (see Democrats), 

268; 269. 
Republican Society (see Con- 
stitutionalists, Anti-). 
Revenue, Public, from imports 

proposed, 132. 
Revere, Paul. 58. 
Rhoads, Henry. 102. 
Riddle, Judge James, 242. 
Rittenhouse. David. 30; aids 
in Virginia boundary. _ 55; 
member of Constitutional 
Convention of 1776, 72; TV, 



296 



INDEX 



83; 86; 87; on Virginia 
boundary commission, 113. 

Roberdeau, Daniel, 87. 

Rodney, Caesar, counsel in im- 
peachment trial. 257. 

Rogers, Major Robert (see 
Pennsylvania). 

Rosebery, Lord, 2. 

Roslyn, Earl of, 5. 

Ross, Andrew. 40. 

Ross. George. 71; 72; 80; 83; 
no; 236. 

Ross, James, sketch of, 182; 
183; 184; 186; 230; 252; 253; 
mentioned for Chief Justice, 
267. 

Rush, Dr., 72; no; 167-8; let- 
ter from, on Dickinson Col- 
lege, 169; 209; 231; 242. 

Rush, Jacob, no; 179; 197: 
200; 204; 205; 209; 222; 229; 
242; 252; 275. 

Saddi, Nathan Ben (see Na- 
than Ben Saddi). 

Sample, David, 40; 43. 

Scull, Nicholas, 29; Jasper, 
36; William, map by, 37-8. 

Sellers, John, 30. 

Sergeant, Jonathan Dickinson, 
149; 229. 

Shay's Insurrection, 198. 

Shippen, Edward, letter from, 
66; succeeds Justice George 
Bryan, 204; portrait of, 222; 
229; portrait of, 230; 231; 
232; 237; 242; 245; 250; be- 
comes Chief Justice, sketch 
of, 251-2; attempted im- 
peachment of, 255-6; resig- 
nation of, 257; 261; letter of 
concerning Judge Smith, 
266; 275. 

Shippen, Joseph, Jr., 30; 27- 

Slains Castle, 3; 4; 6; 265. 

Slavery, abolition of, pro- 
posed, 104-5; author of, 105; 
struggle over, 105; 122; 125; 
law of, 236. 

Sloop Active, case of, 108; 
236-7. 

Smith, Charles (i), 3; goes 
to London. 6-7; character, 7- 
8; a half-brother, 8; in 
America, 9. 

Smith, Charles (2), birth, 7; 
a student of Thomas Smith, 
sketch of, 172; member Con- 



stitutional Convention of 
1790, 202; proposes a law 
school, 203; revises laws of 
Pennsylvania, 204; 211; let- 
ters about, 218; letter of, 
255; 277; 279. 
Smith, Mrs. Elizabeth (i), 

(see Duncan, Elizabeth). 
Smith, Mrs. Elizabeth (2), 
(see Lawrence), i; age of, 
2; marriage, 2; home, 4; 
children, 6; earliest letter to, 
9; later letter to, 171-2-3; 
264. 
Smith, Eliza (Elizabeth (3), 
Mrs. Senator George 
Jones), marriage of, 166; 
correspondence of, 248. 
Smith, George Washington, 

3: sketch of. 262. 
Sm.ith, Col. James. 38; 43; 59; 

71; 72; Major, 82; 130; 229. 
Smith, Dr. James, 2. 
Smith, Dr. James, son of Dr. 

Peter Smith, 3. 
Smith, James, brother of 

Thomas, 3. 
Smith, Jean, 2; reference to, 

10. 
Smith (or Smyth), John. 2-3. 
Smith, Jonathan Bayard, 87. 
Smith, Juliana, 210; 263. 
Smith, Letitia Van Deren (2), 

228. 
Smith, Maria (Mrs. Frederick 

Campbell Stuart), 173; 210. 
Smith, Dr. Peter, i; incident 
regarding, 2; 3; physician at 
Slains Castle, 6; 168; letter 
to, 238-9-40; and the Bos- 
well mention. 265. 
Smith, Rebecca, 228. 
Smith. Thomas, Jr., portrait 
of, frontispiece; birth of. i; 
letters of, 2; birthplace, 2; 
ancestry, 2-3; records of 
birth, 4; 5; death of father, 
early education, 6; to Lon- 
don, 7; first letter of, 7-9; 
Charles' influence on educa- 
tion of, 8; "sole surviving 
son," 8; studies French, g; 
as to early residence in 
America, 9-26; at London in 
1767-8, lo-il; 23; opportun- 
ities in America for, 24-S; 
leaves London, 26; name on 
Standing Stone and infer- 



INDEX 



297 



ence, 27; appointment as 
surveyor, 31 ; district de- 
scribed, 31-2; instructions, 
32-3; additional instructions, 
34-5; additional territory, 36; 
aid in map-making, 37; owns 
lot in Bedford, 38; associ- 
ates, 38; assigned St. Clair's 
district, 40; new bond, 41; 
tribute to, from Justice Dun- 
can, 41; studies law, 42; 
cares for Dr. Smith's lands, 
42; first cases, 43; corre- 
spondent of the Govern- 
ment, 45; Clerk, Prothono- 
tary and Recorder of Bed- 
ford, 45; more cases, 46; 
Deputy Register of Wills, 
46; his influence^ 46; land 
law, how learned, 47; Bed- 
ford Court House in which 
he served, 48; as to his ad- 
mission, 48; admission and 
practice in other courts, 
48-9; letter from, to Secre- 
tary Shippen, on Virginia's 
action, 52-3-4; appointed 
Justice of Common Pleas at 
Bedford, 56; letter of, 56-7; 
salary of, 56; oath of office 
of, 57; arrest and release of 
by Lord Dunmore, 60; one 
of Bedford Committee of 
Correspondence, 61 ; letter 
from, to St. Clair, 62-3; let- 
ter from, and Woods, to 
Assembly, 63-4-5; Colonel 
26. Battalion, Bedford As- 
sociators, and "additional" 
member of Assembly, 67; 
admitted without usual oath, 
67; a constructive moderate. 
68-9; member of the State 
Constitutional Convention 
of 1776, 71; member of 
Committee on Bill of 
Rights, 72; on instructions 
to delegates to Congress, 
72; on committee on Vir- 
ginia proposals, 72; on trea- 
son, 72; on frame of Gov- 
ernment, 73; letter from, to 
St. Clair, 74-5-6; relation to 
St. Clair, 74; illness of, 75; 
describes the convention, 75; 
in minority, opposes single- 
branch legislature feature, 
75; letter from, to St. Clair, 



78-9-80; comments on the 
convention by, 79-80; an 
Episcopalian, 79; his per- 
sonal affairs, 80; on new 
committees. 80; appointed a 
Justice of Common Pleas of 
Bedford county, 80; mem- 
ber of Congressional Con- 
ference, 82; on Committee 
on Election Ordinance, 83; 
last attendance of old As- 
sembly, 83; member new 
Assembly, 86; succeeded as 
Colonel of 2d Battalion, 
86; Lieutenant-Colonel, 87; 
contest in Bedford county, 
89; superseded by Galbraith 
in civil offices, resentment 
by people, 90; at camp at 
Morristown, N. J., 91; As- 
sistant Deputy Quarter- 
master-General, 91 ; letter 
to, from St. Clair, 92-3; re- 
fuses to surrender records, 
93; ordered arrested, 94; 
letter from, with Woods, 
94-5-6; arrested, 96; indirect 
reference to, 97; suggests 
peace measure, 98; readmis- 
sion as attorney, 98; com- 
ments on course of, 99; 
writes War Office concern- 
ing Indian affairs, 100; Anti- 
Constitutionalist member of 
the Assembly, 102; on com- 
mittees, 102; on one calling 
new convention, 102; on 
Congressional Conference, 
etc., 103; on new commit- 
tees, 104; chairman of com- 
mittee to instruct Congres- 
sional delegates, 105: on 
Virginia Conference, etc., 
105; unanimous choice as 
chairman of Committee of 
the Whole, on Congres- 
sional Conference, on High 
Court, on Currency, etc., 
105; objects to repeal of call 
for new convention, 106; 
friendship of, and Miss Van 
Deren, 107-8; on various 
committees, chairman, Con- 
gressional Conference, on 
Sloop Active, case, etc., 108; 
letter to, from St. Clair, 108: 
letter from, to St. Clair, on 
the army, 109; further com- 



298 



INDEX 



mittee work, by chairman 
of, etc., 109; signs "Repub- 
lican" manifesto, no; be- 
comes strict constructionist, 
dissents, other committee 
work by, 112; chairman 
Committee on Instructions 
to the Virginia Boundary 
Commissioners, 112-13; let- 
ter of, 112; reported to by 
Bryan, 113; again in quar- 
termaster service at Bed- 
ford, appointment of, 113; 
letter by, regarding quar- 
termaster service, 114-15; 
more about quartermaster 
service of, 115; made Colo- 
nel of First Batallion, 115; 
letter of, 115-16; on com- 
mittees, 116; injury to, 116; 
on financial and other com- 
mittees, 117; dissents, 117; 
chairman for Congressional 
Conference on case of the 
Sloop Active, 118; course in 
College of Philadelphia 
case, dissent of, 1 18-19; 
chairman of Committee on 
Salaries, 119; other commit- 
tee work of. chairman, 120; 
closing service of in Assem- 
bly, 120-1; letter of and sal- 
ary of, 121 ; again in quar- 
termaster service, 123; urges 
protection for frontier, letter 
of, 126-7; letter of to Presi- 
dent Reed on Indian 
Affairs, 127-8; suggestion of 
acted on by the Assembly, 
129; member of Congress, 
130; instructions to, 130-1; 
attends Congress first time, 
and work before, 134; votes 
on tariff, 134; at celebration 
of completion of the Con- 
federation, 137; votes of, 
138; absent, 138; calls for 
yeas and nays, 138; votes 
against the Bank of North 
America, calls for yeas and 
nays, 139-40; chairman of 
committees, etc., 140-1; on 
committee of three to trans- 
fer various Boards to Super- 
intendent of Finance, 141; 
miscellaneous votes of, 142; 
absent, 142; votes against 
disbanding certain troops, 



other votes of, 143; present 
at reorganization, votes, 
etc., 144; votes on consider- 
ation of claims of land com- 
panies, 144; votes on cen- 
sus, 144; reelected to Con- 
gress, 144; and Post Office 
Department, 145; courtship 
of, 146; extract from letter 
of, 146; his marriage, 147; 
estimate of wife of, 147; in 
Congress again, 148; and 
public lands report, 148-9; 
and Connecticut claim, 149- 
50; miscellaneous Congres- 
sional work of, 150; and for- 
eign loans, 150-1; letter of, 
to the Council, on Wyom- 
ing, 151-2; close of Con- 
gressional service of, 153; 
pay of, 153; chooses Carlisle 
as a home, 154; letter of to 
Wilson, 154-5-6-7-8; re- 
sumes practice of law, 154; 
advises Wilson against land 
speculation, 155; comments 
on politics and President 
Dickinson, 156-7; describes 
a Connecticut attorney, 157; 
comments of. on his own 
public career, letter, 159; re- 
view of practice of, 160-1-2; 
practice of in Bedford, 161- 
2; admission of in other 
counties, 163-4; preeminent- 
ly a land lawyer, 164; prac- 
tice chiefly in Nisi Prius 
courts, 165; and the Su- 
preme Court of the State, 
166; family of and settle- 
ment at Carlisle, 166; office 
of, 167; becomes trustee of 
Dickinson College, 167; let- 
ter of. on Dickinson Col- 
lege, 168; letter to, from Dr. 
Rush, 169-70; devotion to 
Dickinson College, 169-70; 
practice of at Carlisle, 170-1; 
legal rivals of, 170; practice 
at Bedford, 171; letter of, 
describing his practice, 171- 
2-3; attends more courts 
than any lawyer in Pennsyl- 
vania, 171; has law students, 
his nephew, Charles, one, 
172; property of, 173; attor- 
ney for Gen. Washington, 
173; brief of Washington 



INDEX 



299 



ejectment case, 174-S; pa- 
pers of, 175; is preferred by 
Washington to Wilson, let- 
ter to, from Washington, 
176; receives the Washing- 
ton argument, 176; recom- 
mends mercy to Washing- 
ton for vanquished ten- 
nants, 177-180; account of 
his practice, 177; comments 
on the course of ejectments 
in the West, 178; comments 
on land law of this case, 
179; suggests mercy to ten- 
nants, 180; reply to, by 
Washington, 181; is asked 
what charges are, 182; gives 
account of success of the 
trial, 182-3-4-5-6; expresses 
great pride in this case, 182; 
refers to fee, 184; again re- 
fers to mercy, 184: again re- 
ceives request about fee 
from Washington at Federal 
Convention, and replies, 
185-6; congratulates Wash- 
ington on coming election 
to Presidency, 186; estimate 
of, by Judge E. W. Biddle. 
187; view of his Bedford 
work in later years, 187-8; 
describes practice, 188; let- 
ter of, 201; his party at last 
successful, his work recog- 
nized, 204; considered for 
various posts. 205; offered a 
district by the Governor, 
205; is desired slated for At- 
lee's place or the Attorney- 
Generalship, 205; Yeates' 
comment on, 205; letter ol 
to Justice Yeates, 205-6-7-8; 
Judges Yeates and Lewis 
desire him for Judge of the 
United States District 
Court, 206; expresses his 
professional aims, 207; re- 
fers to Washington's friend- 
ship, 208; admitted to the 
bar of the United States Su- 
p r e m e Court, probably 
thought of for National At- 
torney-General, 208; high 
opinion of, by Justice 
Yeates, 208-9; commission 
as President Judge of 
Fourth District issued, 209: 
letter by, on Addison, 209; 



estimate of, by Judge Ed- 
ward W. Biddle, 210; his 
family in 1791, 210; size of 
his district, 210-11; his first 
court, 211; his oath of of- 
fice, 211; attorneys before, 
212; punishes contempt of 
court, 212; holds first courts 
at Chambersburg and Bed- 
ford, 212; holds first court 
at Carlisle, address by, to 
grand jury and bar, 213-14; 
corrects erroneous customs, 
213-14; first court of, at 
Lewistown riot cases, 215- 
16; estimate of work of at 
Bedford by Judge J. H. 
Longenecker, 217; work of 
at Carlisle and elsewhere, 
218-19; letter of, 218; letter 
to A. J. Dallas, 219; com- 
ments on, by Justice Hus- 
ton, 219-20; letter on Whis- 
key tax troubles, to Gov. 
Mifflin, 220-21; character of 
courts of, 221; work of, in 
the High Court of Errors, 
222-3-4; letter of, on the 
High Court, 223; latter at- 
tendance at, 224; number of 
expressions of, in courts, 
224; opinion of, in the High 
Court, 224-5; and Judge 
William Bradford. 226; is 
commissioned Justice of the 
Supreme Court of Pennsyl- 
vania, 227; facsimile of com- 
mission, 228; his family, 
228; first appearance on the 
Supreme bench, 228-9; ad- 
missions to the Supreme 
Court bar and Judge Smith, 
229; cases of. before the Su- 
preme Court. 229; rivals of 
and colleagues before this 
court. 230; alternate on the 
Whiskey Insurrection Com- 
mission. 230; settles in 
Philadelphia at 236 South 
Second street, 231; letter of, 
to Judge Yeates, on new 
home. 232-3-4; amusing ex- 
periences of. 233; becomes 
member and a Vice-Presi- 
dent of the St. Andrews So- 
ciety. 234; also of Philadel- 
phia Library Company. 235; 
his manuscript notes and li- 



300 



INDEX 



brary, 235; extracts from 
notes of, 236; notes ot 
value, by Tilghman, 236; ex- 
pression of, on case of the 
Sloop Active, 22,6-7; letter 
of, with court news, 237; 
work of, in the High Court, 
238; letter of, to Dr. Peter 
Smith and Judge Smith's 
mother, 238-9-40; tells of 
family of the Provost, 239; 
on relations of America 
and Britain in 1795 ; number 
of opinions, etc., of, earliest 
one, 240-1; expression of, 
■regarding a son, 240; long 
and interesting opinion of. 
241-2; illness of, described 
in letter of, 242; at the High 
Court, 242; at Nisi Prius 
courts, 243; letter of badin- 
age to Yeates, 243; de- 
scribes Washington cele- 
brating his birthday, 243-4: 
tells of the Governor's 
foibles, 244; why opinions 
were not more frequently 
given, 244-5; deference to 
the senior Justices and lack 
of vanity, 245-6; removes to 
High or Market street, 246- 
7; his child dies, 246; letter 
of, on yellow fever in 1797, 
247; cost of residence of, 
247-8; salary of, 247; educa- 
tion of his family, 248; a 
dissenting opinion of, 248-9; 
an _ opinion showing great 
indignation, 249-50; letter of, 
to Yeates. 250; an incident 
related of Smith and Brack- 
enridge, 253-4; and the 
Passmore case, 255; at- 
tempted impeachment of, 
and acquittal, 255-6-7; ex- 
pression by, 257; opinions 
by, 258-9; a leading case. 
259; a dissenting opinion, 
260; in the High Court, 259: 
letter to Yeates, 260; and 
Yeates become senior mem- 
bers of both the highest 
courts, 261; expressions by, 
261-2; birth of a son, George 
Washington, 262; describes 
his family, 263-4; salary of, 
etc., 264; his home, 264; 
and the Provost's obliga- 



tions mutual, 264; writing 
habits, 264; work as a Judge, 
265; refers to the Boswell 
mention of Dr. Peter Smith, 
265; great hardships as sur- 
veyor, lawyer and judge de- 
scribed, declining health, 
265-6; receives serious sun- 
stroke, 266; refers to por- 
trait of the Provost, 266; 
comments on, by Shippen, 
266; earliest opinions by 
under Tilghman's Chief Jus- 
ticeship, 269-70; opinion by, 
in 1807, 270: his modesty in 
a dissenting opinion, 271; 
tells of attention to duties 
and illness, 271-2; premoni- 
tion of the end. 272; severe 
illness, 272-3; joins in work 
of determining what Eng- 
lish statutes in force in 
Pennsylvania, estimate of by 
Binney and Judge Smith 
himself, 273-4; visits Bed- 
ford Springs, 274; rebukes 
carelessness at the bar, 274; 
last reported opinion, 274-5; 
last appearance in the High 
Court, 275; on the death of 
Shippen, 275-6; last district 
assignment. 276; leaves the 
Supreme Court session in 
last illness, 276; death of, 
277; funeral and burial at 
Christ Church, 277; his pew 
"The President's," 277; his 
executors, 2yy; his willj 277;- 
view of interior of Christ's 
Church, showing his pew, 
"The President's," and view 
of his tomb. 278: inscription 
on tomb of, 278; touching 
references to in court, 278-9; 
tribute to, by Horace Bin- 
ney, 279; estimate by Shars- 
w-ood, 279; sketch and 
eulogy of, original in hand 
of Judge Charles Smith, 
tribute by Mrs. Smith, 280- 
1-2-3; a suggestive estimate 
of, 284. 

Smith, Mrs. Thomas, Jr. (see 
Van Deren, Letitia). 

Smith, Judge Thomas (see 
Smith, Thomas, Jr.). 

Smith, Thomas, son of Judge 
Smith, 246. 



INDEX 



301 



Smith, Thomas, St., i; birth 
and ancestry, 2; marriages, 
2-3-4- 

Smith, Mrs. Thomas. Sr. (i), 
(see Duncan, Elizabeth), 3! 

Smith, Mrs. Thomas, Sr. (2), 
(see Lawrence, Mrs. EHza- 
beth, and Smith, Mrs. EHza- 
beth), 3. 

Smith, Dr. William, the Pro- 
vost, 2; birth of, 3; ancestry, 
3: Provost of College of 
Philadelphia, 6; receives 
honors in England, 7; note 
on education, 7; mathemati- 
cal course, 8; return of, 9; 
reference to Thomas with 
him in America, 9; his at- 
tack on the Quaker As- 
sembly in 1755-6, 12-13; 
chronicles of Nathan Ben 
Saddi, 13; account of Bou- 
quet expedition by, 15-16; 
on Stamp Act, 16; first land 
purchase by, 18; educational 
missionary. 18; temporary 
rector at Christ Church, 24; 
relations with Thomas, 26; 
buys Standing Stone tract. 
27; in reorganization of 
American Philosophical So- 
ciety, 30; observes transit of 
Venus, with Mr. Lukens, 
30-1; gives bond, 31; letter 
to St.Clair, 31; on bond, 41; 
aids in Virginia boundary, 
55; relation to Connecticut 
claims, 56; member Com- 
mittee of Correspondence, 
59: letter of, regarding 
boundary, 62; controversy 
with President Reed, by. 
107; country seat and view 
of, 107-8; founder of Wash- 
ington College, 124: solem- 
nizes marriage of Thomas. 
146-7; works for restoration 
of College of Philadelphia. 
200; restoration, 203; 234; 
239: and Thomas Smith's 
obligations mutual, 264: a 
portrait of, referred to. 266. 

Smith, William, father of 
James. 2. 

Smith. Sir William, 2. 

Smith. William, son of Judge 
Smith, 240. 



Smith, Williamina Elizabeth 

210; 263. ' 

Smiths, Scottish, 5. 
Smollett, 2. 
Smyth John (see Smith, 

John), 3. 
Stamp Act. Dr. Smith on, 16 
Standmg Stone, creek of, 19; 

landmark, 26-7; tract, 27; 

names on, 27; remains of' 

27. 

St. Andrew's Society of Phila- 
delphia, 234. 

Stanwix, Gen., 38. 

State House. 70; deserted as 
capitol, 92; again capitol 
100; 133: 134; 137; ipj. 
capacity described, 201; 
square, the national capitol', 
202; 223; Supreme Court 
portraits at, 223; rooms in, 
m 1794, 228; surroundings in 
1794, 228. 

St. Clair, Arthur, 5; Lieuten- 
ant, settled, 22; letter to, 
31; becomes surveyor, por- 
trait of, 36; 39: sketch of, 
40; 45; arrests Conolly, 51; 
Dunmore desires dismissal 
of, 56; Justice, 56; 58; letter 
to, 59; 60; letter to, 62-3; 
letter to, 74-5-6; highest 
rank of, 76; letter to, 78: 
90-1; letters from, 92-3; let- 
ters from, 108-9; 146; candi- 
date for Governor of Penn- 
sylvania, 202; 267. 

Stephenson. John, 40. 

Stewart, Charles. 36; 37. 

St. George's Society. 234. 

Surveyors (see Lukens and 
Pennsylvania). 

Tarifif (see Revenue); and 
Connecticut, 138. 

Taylor. 72. 

Tea, Richard. 29; 34; 36; 37. 

Teagarden. 54. 

Thomson, Charles, 30; William 
36; 37; Charles, 59. 

Tilghman, Edward, 229; 256: 
offered Chief Justiceship, 
268; letter of on reorganiza- 
tion of the judiciary, 283. 

Tilghman, James, 31; 57; 268. 

Tilghman, William, 231; 
chosen Chief Justice, 267-8; 
sketch and portrait of, 268- 



302 



INDEX 



9; 27s; executor of Judge 
Smith and chief guardian of 
children, 277; reference to 
by Judge Smith, 278. 

Treaty, of 1763, 12; of 1754, 
26; of 1758, 27; of Fort 
Stanwix, 28; of Peace, 
commissioners of, 151. 

TurnieUef (or Turnielove), 2; 

3- 

Turnielove (see Turnielief), 2. 

Udny, 2. 

United States, name of first 
legally used, 137. 

University of Pennsylvania 
(see College of Philadel- 
phia). 

Van Deren, Letitia, 108; 
John, 108; Letitia, her 
courtship, 146; marriage to 
Hon. Thomas Smith, 147; 
portrait of, 148: family and 
settlement at Carlisle, 166; 
(see Smith, Thomas, Jr.); 
"Tacy," 233; tribute to, 263- 
4; 277. 

Vanhorn, Rev. William, 71. 

Vermont, vote concerning ad- 
mission of, 142. 

Virginia, settlers of in Penn- 
sylvania. 23; claims of in 
boundary dispute, 50; action 
in the West, 52-3-4: bound- 
ary, 55; hostilities in West, 
56; 59-60; apparent truce 
with, 60; letter on boundary 
of, 62; Hooper's map of 
boundary mentioned, 62-3; 
proposal by, 71; 76; and 
Pennsylvania friction, in- 
fluence of, 81; West Augusta 
memorial to, 82; boundary 
commission, instructions, 
113; 117; report on, 129; 
campaign in, 135. 

Wain, Nicholas, 231. 

Wallis, S., 37. 

War, indications of, 23; first 
British fort captured, 39; 
with Virginia, 51; with In- 
dians, 58; opening Revolu- 
tion, 58-9; close of, with In- 
dians, 60; 81: 94-5-6; 98: 
100; 115-16; 127-8-9; belief 
in end of Revolutionary, 



130; last campaign provided 
for, 13s; possibility of, ex- 
pressed, on account of Fed- 
eral Constitution, 197. 
Washington, George, letter to, 
7; 15; 92-3; 100; 109; 135; 
announces surrender of 
Cornwallis, 143; visits Con- 
gress, 145-6; 151; sketch of 
relations to land in Wash- 
ington county. Pa., 173-4; 
engages Thomas Smith as 
attorney, 174; progress of 
the case, 174-5; written ar- 
gument by, 176; fac-simile of 
first page of the same, 176; 
letter from and letter to, 
1 77-8-9-80-81; replies to sug- 
gestion of mercy, express- 
es esteem, 181; letter to, 
describing success of the 
trial, 182-3-4-5; letter from, 
at Federal Convention on 
fee, 185; congratulated on 
coming election to Presi- 
dency, 186; 196; elected, 201; 
inaugurated, 202; population 
of in 1794. home of, in 
Philadelphia, 231; how he 
celebrated his birthday, 243- 
4; 252. 

Wertz, Henry, 40. 

West, Benjamin, first "char- 
acteristic" portrait by, 7. 

Westmoreland county, organ- 
ized, 45; map of, 46; Justices 
of, 53; magistrates arrested, 
56-7; loan to, 59. 

Westsylvania, proposed prov- 
ince, 81; memorial concern- 
ing, 81-2; map of, 82. 

Wharton, Thomas, Jr., 59; 87; 
death of, 100. 

Whiskey Insurrection, 230; 
252. 

Whitefield, George, 24. 

Whitehill, Robert, one of 
added members of Commit- 
tee on Constitution, 73; 193; 
amendments offered by. and 
comments on, 194; 200; 202; 
257- 

Wilcocks. Alexander, 67; 229. 

Willing, Thomas, 61; 231. 

Wilson, George, 40; 53; 56. 

Wilson, James, 5; lawyer at 
Carlisle and Reading, 23, 
admitted at Bedford, 40; 



INDEX 



303 



43; 46; 59; letter of, 59; 61; 
member of Congress, 71; 
72; 74; 75; 86; letter from, 
91; manifesto credited to, 
no; Fort Wilson riot at 
home of, 119-20; and land 
companies, 143; 147; 148; 
149; 153: letter to, on land 
speculation, 154-5-6-7-8; 
where buried, 154; 161; 168; 
176; 186; 192; great defense 
of Federal Constitution, 
193; 194; Presidential elect- 
or, 200; member Constitu- 
tional Convention of 1790, 
202; becomes Doctor of 
Laws and first Professor of 
Law in College of Philadel- 
phia, 203; Justice of the Na- 
tional Supreme Court and 
chosen to revise laws of 
Pennsylvania, 204; 229; 231; 
234; 279. 

Wissahickon, The, view 
146. 

Witherspoon, Dr., 137; 16^ 

Woods, George, 38; 39; 
61; letter from, with 
Smith, 63-4-5; 86; 87; letter 
from, with Smith, 94-5-6; 99; 
102; 106. 

Wolf. Phoebe, 38. 

Wynkoop, Henry, member of 
Congress and appointed to 



of. 



59; 
T. 



High Court of Errors, por- 
trait of, 130; 133; 137; 147; 
149; 153; 222. 
Wyoming, 133; 151. 

Yeates, Jasper, 8; lawyer at 
Lancaster, 23; letter to, 66; 
Commissioner of Indian Af- 
fairs, 81; 186; letter of, on 
Wilson's speech, 193; letter 
of on ratification of Federal 
Constitution by Pennsylva- 
nia, 194; member conven- 
tion of 1790, 202; succeeds 
Rush on the Supreme bench, 
205; devotion of. to Thomas 
Smith, letter of, 205; 206; 
letter to, 205-6-7-8; letter to, 
by Judge Smith, 218; por- 
trait of 222; letter of, 223; 
229; portrait of, 230; let- 
ter to, 232-3-4; library of, 
235-6-7; letter to, 242; letter 
of badinage to, 243; 253; at- 
tempted impeachment of, 
255-6; letters to, 261; twits 
Yeates on his systematic 
habits, 262; 268: touching 
reference to Judge Smith, 
278; 283. 

Yellow Fever, in Philadelphia, 
in 1797, 247; 248. 

Young, Dr. Thomas, 66. 



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